Terms and Conditions
These Terms and Conditions shall apply to you (The Customer) for the provision of products and services provided by Peak Support Services Limited (PSS), (The Company) registered in England and Wales whose registered office is 53 Dimple Road, Matlock, Derbyshire, DE4 3JX. Company Registration Number 2617800
These terms and conditions shall govern and apply to the provision of the services to the exclusion of any other terms and conditions, including any terms and conditions which the customer may attempt to apply when confirming any orders or any other documents.
Definitions and Interpretation
‘Acceptable Use Policy’ the latest version of the document issued by the Company in accordance with regulation to uphold its obligations and clearly define for the Client the policies and rules regarding use of the Services.
‘Business or ‘Enterprise’ a Customer who is a company, a limited liability partnership, a partnership or sole trader or which otherwise trades through the premises to which the Products and Services are supplied and chooses to contract with The Company for specific or enhanced Services designed for commercial or business use.
‘Confidential Information’ all information identified as such by the disclosing party in writing together with all such other information which relates to the business affairs, finance, products, data, software programs, specifications, documentation, software listings, source or object code, developments, pricing terms, trade secrets, know how, personnel, customers and suppliers of the other party, together with all information which may reasonably be regarded as the confidential information of the disclosing party.
‘Customer’ the end user receiving and responsible for payment regarding the goods and/or services provided by the Company.
‘E-Billing’ an on-line or email process for sending out or accessing invoices and charges to the Customer for the products and services supplied by the company.
‘Event of Force Majeure’ means any circumstances beyond a party’s reasonable control including, without limitation, strikes, lock-outs or other industrial disputes, 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 suppliers or sub-contractors;
‘Headline Transmission Speeds’ the optimum non-guaranteed data transmission rates intended for the Service as stated on the Proposal/Quote, that the Customer can expect from the Service under ideal conditions.
‘Initial Term’ a period of 12 months unless otherwise stated on the Proposal/Quote.
‘Intellectual Property Rights’ any patents, trade marks, service marks, design rights (whether registerable or otherwise), applications for any of the foregoing copyright, database rights, know-how, trade or business names and other similar rights or obligations, in any country (including, but not limited to, the UK).
‘Proposal/Quote Document’ a document provided by the Company containing the specific details of the goods and/or services to be provided, together with the associated costs of this provision, which is then accepted by the Customer through signing or completing online and submitting it to the Company together with a purchase order.
‘Products and Service(s)’ all equipment, software or services which are detailed on the Proposal/Quote/Support Agreement Document and/or which are supplied to the Customer by the Company including any new, extra or substitute Products or Services which the Company agrees to supply to the Customer at a later date.
‘Product Terms’ any additional terms and conditions that apply to specific product and services and are referred to in the Proposal/Quote/Support Agreement document.
‘Service Demarcation Point’ The defined socket, equipment port or device to which the Company delivers and supports the Service. This is defined on the Proposal/Quote/Support Agreement document and pointed out to the Customer upon acceptance of the Service.
‘Proposal/Quote/Support Agreement document’ the completed PSS Proposal/Quote/Support Agreement document signed or completed online by a Customer submitted to the Company and subsequently accepted by the Company.
‘Service Level Agreement or SLA’ those enhanced service levels which can be ordered by a Business or Enterprise customer subscribing to its enhanced Business or Enterprise services including an SLA.
‘Terms and Conditions’ the terms and conditions set out in this document, together with any Product Terms with all the details set out in any contract document or Proposal/Quote/Support Agreement document the Company may ask the Customer to sign including any regulated agreement under the Consumer Credit Act 1977.
‘Unlimited Use’ the use of the Company’s internet packages and other related services without any form of usage cap imposed by the Company. However, such use remains subject to PSS’s ‘Acceptable Use Policy’ which may change this.
1.1. Words in the singular shall include the plural and vice versa and words importing gender include any other gender.
1.2. Unless otherwise expressly provided, any reference to any legislation shall be deemed to include any amendment replacement or re-enactment thereof for the time being in force and to include any delegated legislation, orders, notices, directions, consents, provisions made thereunder and any condition attaching thereto.
1.3. References to writing shall include any modes of reproducing words in a legible and non- transitory form.
1.4. The headings of paragraphs are for ease of reference and shall not affect the construction of this Contract.
1.5. Unless stated to the contrary in the event of a conflict between the Terms and Conditions and any Product Terms relating to products and services to be provided by the Company then the specific Product Terms shall prevail.
2. Proposal/Quotes/Support Agreements
2.1. All Proposal/Quotes are accepted subject to the availability of Products, the installation survey necessary to ascertain installation requirements to the property, the ability of the Company to provide Services to the location defined by the Customer on the Proposal/Quote/Support Agreement and to these Terms and Conditions.
2.2. The Company shall supply, and the Customer shall purchase the Products and Services described on the Proposal/Quote document in accordance with these Terms and Conditions, which shall govern the contract to the exclusion of any other terms on which the Customer seeks to rely. No variation to these terms and Conditions by the Customer shall be binding unless expressly agreed in writing by the authorised representatives of the Company.
2.3. The Company’s employees or agents are not authorised to make any representations concerning the Products/Services unless confirmed by the Company in writing. In entering into the contract, the Customer acknowledges that it does not rely on any such representations, which are not so confirmed, but nothing in these Terms and Conditions affects the liability of either party for fraudulent misrepresentation.
2.4. Any typographical, clerical or other error or omission in any sales literature, quotation, Order, price list, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.5. The Company reserves the right to vary the charges contained in the Proposal/Quote prior to acceptance of the Proposal/Quote if additional costs are identified through a price increase, survey, design or scoping of the Customer’s requirements. The Customer has the right to cancel the Proposal/Quote within 5 working days of being advised of any such change. The Company will deem acceptance of these charges and accept the Proposal/Quote as amended if the Customer does not cancel in writing with this period. The provisions of this condition shall not affect the rights of a Customer dealing as a consumer (within the meaning of the Consumer Credit Act 1977).
2.6. Customer shall be bound by all Proposal/Quotes/ Support Agreement signed or acknowledged on the Customer’s behalf and the Company will only be bound to supply the Products and Services on the Company’s acceptance of the Proposal/Quote/ Support Agreement document and following receipt of payment of any charges detailed therein.
2.7. The Company reserves the right to charge for any omission or additional costs arising from the provision of inaccurate or insufficient information by the Customer or in cases where the Customer requests delays or changes to the planned solution as delivered by the Company and to revise prices to take into account increases in any costs of providing the Products which occurs between the date of quotation and delivery.
2.8. The Company reserves the right to amend the charges for the work in the event of unforeseen circumstances at the point of installation. During these unforeseen circumstances the Company reserve the right to suspend the work until further survey, design, and or solution is identified and agreed by both parties. The Customer has the right to instruct the Company to suspend installation to allow for consideration of these amendments. If the Customer does not accept the amendments formally within 10 days the Company reserves the right to cancel the Proposal/Quote and bill all products and services supplied at the point of installation when the unforeseen circumstances arose.
3.1. The Company shall supply the Products and Services as detailed in the Proposal/Quote/Support Agreement in accordance with these Terms and Conditions and any Product Terms.
3.2. The Company will configure and install items to the specification provided to the Customer in accordance with the rates detailed on the Proposal/Quote/Support Agreement.
3.3. Installation shall be to the point identified by the Company as most accessible. In the event the Customer changes the specification for such installation/configuration the Company reserves the right to require payment for implementing such changes at rates notified to the Customer from time to time.
3.4. The Company will use reasonable care and skill in performing such installation/configuration and will perform such Services within a reasonable time. Times quoted by the Company are estimates only and any delay in meeting delivery dates shall not give rise to a right to cancel the order or to claim damages.
3.5. Delivery will be to the location and access point specified on the Proposal/Quote/Support Agreement. Any request by the Customer for the Company to delay or split delivery may result in additional costs incurred by the Company and such costs shall be notified to, invoiced and be payable by the Customer. The Customer may only suspend its delivery if this is agreed in writing by the Company and if any costs incurred by the Company as a result are paid by the Customer at this time. The Company may be reliant on third party suppliers and in some cases require planning consents, wayleaves or rights of way for such installations. Delays caused through these sources will not allow the Customer to cancel or amend the Proposal/Quote/Support Agreement unless agreed in writing by the Company. The Company will not be liable for any losses of any kind incurred by the Customer through such delays.
3.6. The Company shall be responsible for provision of the Service up to and including the Service Demarcation Point. The Company shall inform the Customer of this obligation and the relevant location of the Service Demarcation Point at the time of commissioning and acceptance of the Service by the Customer.
3.7. In supplying the Services the Company will use its reasonable skill and care to maintain provision but the Company is not able to guarantee fault-free performance. Due to factors outside the Company’s control such as access to 3rd party content and services and shared use of networks, internet access availability and speed may vary from time to time. In addition the speed and limitations of your equipment may affect the transmission speed that we can provide you. We cannot provide a fully guaranteed end to end Service to be available at all times.
3.8. The Company will endeavor to carry out necessary maintenance and support of its own systems work outside of UK business hours (“Planned Outages”). The Company shall also endeavor to notify the Customer of any Planned Outages at least five days prior to such work being carried out, although the Customer accepts that due to the nature of the Services, this may not always be possible. The Company shall not be liable to the Customer for any temporary unavailability of Services due to planned maintenance, emergency maintenance or loss of use outside the reasonable control of the Company.
4. Customer Obligations
4.1. The Customer is responsible for the installation, configuration, performance, maintenance and use of the Service beyond the Service Demarcation Point.
4.2. The Customer is responsible for the provision, maintenance and upkeep of an environment suitable for the provision of the Services, as defined in the Support Agreement or any Product Terms. For the avoidance of doubt, this includes adequate and consistent electrical power as required by the Products or Services.
4.3. The Customer agrees to abide by the Company’s Acceptable Use Policy.
4.4. The Customer agrees to only use the Company network for lawful purposes. Any material transmitted through the Company network, or use of any part of it, in violation of any UK law or regulation, which is otherwise defamatory, discriminatory, or derogatory is prohibited.
4.5. The Customer hereby consents to our intermittent monitoring of the Services (whether authorised by statute or other legislation or otherwise) to ensure lawful use of the Services.
4.6. When the Customer is issued with a password to access the Products and Services, they shall take all reasonable steps to keep such password private and confidential and ensure that it does not become known to other persons. If the password becomes known to any other person, the Customer will immediately inform the Company and the password will immediately be changed. The Company may change the Customer’s password from time to time at their discretion without prior notice.
4.7. The Customer agrees that they are liable for any charges on the Customer’s account regardless of whether the Customer or anybody else (with or without the Customer’s permission) incurs those charges (unless the charges result from fraud by an unrelated third party which is not residing at the Property and over which the Customer could have had no control over). For the avoidance of doubt, the Company considers anyone who has access to the Customer’s premises or has been given access to the Services (whether deliberately or by default of weaknesses in the Customer’s security) to be within the Customer’s control and the Customer would be liable for those charges. If the Customer becomes aware of any fraud by someone else, they must tell the Company as quickly as they can. The Customer shall be deemed to have given permission to use the Customer’s account and add charges on to the Customer’s account to any other individual or party to whom they have divulged any PINs or passwords relevant to the Service.
4.8. The Customer may use the Company’s network to access other Internet connected networks world-wide and agrees to conform to any published and future protocols and standards. In the event that communications by the Customer do not conform to these standards, or if the Customer makes profligate use of the Company network to the detriment of the Company or any other of the Company’s Customers, the Company reserves the right to restrict passage of the Customer’s communications until they give a suitable undertaking as to use and adhere to such undertaking.
4.9. The Company is not responsible or liable for any third party charges from other organisations (such as telephone service or content providers) which may be incurred by the Customer while using the Services. The Customer shall indemnify the Company for any claims or charges made against PSS in respect of any such costs incurred.
4.10. Any Internet address allocated by the Company to the Customer will at all times belong to the Company and the Customer may not sell or agree to transfer the address to any person. The Customer will have a non-transferable licence to use such Internet address whilst the Customer receives internet access from the Company. In the event the Service is terminated, for whatever reason, the Customer’s license to use the Internet address shall automatically terminate and thereafter the Customer shall not use the Internet address.
4.11. The Customer undertakes not to assign or in any other way transfer the Services, without the Company’s prior consent.
4.12. The Customer accepts that the Company may vary the technical specifications of Products and Services from time to time for operational or regulatory reasons and such reasonable variance shall not invalidate these Terms and Conditions.
4.13 The Customer shall provide a system security policy in place to prevent the introduction of virus and system intrusion attacks. This includes the introduction of antivirus-antispam- ransomware protection and content scanning software with suitable Firewall Products. PSS can advise on appropriate products to incorporate into the system.
4.14 The Customer accepts that the Company may be used to provide professional services to attain Cyber Essentials and Cyber Essentials Plus accreditation and work directly /indirectly with a Cyber Essentials Plus certification body. During the course of this work, penetration tests, internal and external vulnerability scans on the customers system may take place as part of this accreditation process. The customer agrees to indemnify the Company and the Certification body against all loses relating to penetration tests, vulnerability scanning and any impact on service outage/business interruption.
4.15 The Customer will comply and agree to pay all subscriptions commitments up to the Term renewal date, even if this date extends beyond the Support Agreement Termination Date.
5. Using the Services
5.1. Due to the nature of the Internet, the Company cannot guarantee specific levels of performance, speed or access for the use of the Services and for internet access.
5.2. The Company reserves the right to remove by immediate notice material placed on its servers by the Customer or other users which violates these Terms and Conditions or is otherwise harmful to the Company’s interests or the interests of other users of the Services.
5.3. The Company reserves the right to monitor and control data volume and/or types of traffic transmitted via the Services. In the event that the Customer misuses the Service or their use does not comply with the Company’s ‘Acceptable Use Policy’, available on the Company’s website and amended from time to time, the Company reserves the right to reduce, suspend or terminate the Customer’s access and use of the Services. During any such time of reduction or suspension, the Customer will remain liable for the payment of the original level of charges. It is the Customer’s responsibility to review the Acceptable Use Policy from time to time, to ascertain if changes have been made to it.
5.4. The Company cannot guarantee that Headline Transmission Speeds can be obtained at any time, however the Company will endeavor to inform the Customer of any issues, and attempt to resolve them, as soon as is reasonably possible.
5.5. The Customer is responsible for maintaining in good order any Products under its control. PSS recommend that all Products of the Company be insured for their full replacement value by the Customer. The Customer must make good any damage to Products (including damage or cuts to network or fibre within the Customer’s property) within 21 days of the damage being incurred, except where such damage is caused by the negligence of PSS or its agents.
5.6. The Customer agrees to take responsibility for any and all liabilities, claims and losses which are in any way connected with misusing the Services supplied under these Terms and Conditions, and to fully indemnify the Company if the Company suffer any costs or losses of this kind. For the avoidance of doubt, such losses include all direct, indirect (whether reasonably foreseeable or not) or consequential losses that can be evidenced by the Company.
5.7. The Company may email service announcements to the Customer as part of the Services.
6. Customer Equipment
6.1. The Company will not be liable in any way for any loss or damage which is caused to the Customer’s own equipment arising as a result of its use with the Services.
6.2. The following equipment supplied as part of the installation will be deemed to be owned by the Customer, and title will pass on acceptance of the installation and commissioning of the Service and payment made in full.
6.2.1. All cabling within the Customer’s premises up to and beyond the Service Demarcation Point
6.2.2. The socket, equipment or device providing the Service Demarcation Point (as defined on the Proposal/Quote and shown to the Customer upon acceptance of the Service)
6.2.3. Any router or other IP switching and management device connected to the Service Demarcation Point
6.3. The Company will provide, subject to clause 9.4 a warranty on this equipment supply for 12 months from the date of installation in respect of the equipment is free of manufacturing defect in workmanship and associated labour. The Company reserves the right to repair or replace faulty equipment at its entire discretion. Where the Company finds that any warranty claim arises from the misuse of the equipment, the Company shall be entitled to charge the Customer for any costs of repair or replacement.
6.4. In the event that any of the equipment supplied as part of the installation requires replacement after the 12 month warranty period, then the Customer will be invoiced for replacement equipment and should engineering presence be required to replace the equipment at the Customer premises the Company reserves the right to levy a service call out charge which shall be advised to the Customer priori to attendance.
6.5. An additional extended warranty may be offered by PSS (directly or through a selected third party) for an additional monthly charge. This will be subject to any specific terms and conditions that may be offered at the end.
6.6. The Company recommends that the customer accepts a Support Agreement to ensure all hardware and software as defined within the Support Agreement is fully supported under the Support Agreement terms and conditions.
7. Term and Termination
7.1. These Terms and Conditions shall be deemed to have taken effect from signature by the customer of the Proposal/Quote/Support Agreement and acceptance by the Company and shall continue for the Initial Term. Thereafter, the Terms and Conditions shall continue in their entirety until terminated by either party giving not less than 3 months’ notice in writing or until terminated in accordance with this clause or unless stated in the Product Terms.
7.1.1. Either party may terminate a Proposal/Quote forthwith on giving notice in writing to the other party if the other party commits a material breach of these Terms and Conditions and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the other party so to do, to remedy the breach (such request to contain a warning of other party’s intention to terminate).
7.1.2. Any termination of the Proposal/Quote/Support Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination, which includes without limitation, the Customer’s obligation to make any payment due to the Company for Subscriptions, Products and Services supplied (including for the avoidance of doubt any charges incurred in respect of work in progress) prior to the date of termination. For the avoidance of doubt, charges shall become due and payable during any period of notice of termination and in the event that termination occurs during any Initial Period, the Customer shall pay any and all charges due until the expiry of any such Initial Period. Clause 4.14 shall apply.
7.1.3. Either party may terminate this agreement forthwith if an order is made or an effective resolution passed for the liquidation, winding up, dissolution or bankruptcy (other than by way of members voluntary liquidation or pursuant to any amalgamation or reconstruction on mutually agreed terms) of either party or a receiver, administrative receiver, administrator or trustee in bankruptcy is appointed over all or any of the revenues or assets of either party.
7.2. The Customer has a right to cancel their Order under the E-Commerce Regulations and the Consumer Protection Regulations (as amended from time to time). The Customer has the right to cancel the Proposal/Quote for a period of 7 days from the date of confirmation of the Customer’s Proposal/Quote by the Company (a “cooling-off period”), unless the Customer is a consumer (within the meaning of the Consumer Credit Act), in which case clause 7.3 prevails. In the event of cancellation during the cooling-off period, the Proposal/Quote is treated as if it had not been made. Please be aware that the Customer will lose the Customer’s right to cancel the Proposal/Quote during the cooling-off period once the Company has commenced activation of the Services, i.e. by starting the installation or provisioning of Services to the Customer subject only to clause 2.8.
7.3. Where the customer acts as a consumer (within the meaning of the Consumer Credit Act) the Customer has a right to cancel this agreement before the end of the fourteenth day following the day on which the Customer signed the unexecuted agreement. (a “cooling-off period”). In the event of cancellation during the cooling-off period, the Customer will be liable to the Company for any work undertaken on the Customer’s behalf, and for any use made of the Service during the period to cancellation.
7.4. The Company has the right to terminate the Proposal/Quote/Support Agreement on the grounds of non-payment of invoices or late payment of invoices where not paid within 7 days of invoice being due or non-payment of direct debits. The Company may alternatively suspend service or reduce speed of service in the case of non-payment, in which case the relevant provisions of clause 8 will apply.
8. Suspending Services
8.1. The Company may suspend any or all of the Services immediately without notice if:
8.1.1. the Customer is in breach of any of these Terms and Conditions;
8.1.2. the Company or our agents need to carry out any maintenance, repairs or improvements to any part of the Services;
8.1.3. the Company is obliged to do so by law or in line with these Terms and Conditions of Service;
8.1.4. the Customer fails to make any payment when due;
8.1.5. the Customer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order, goes into liquidation, has an encumbrancer or receiver take possession of its property or assets, or the Company reasonably apprehends that any of the events mentioned herein is about to occur in relation to the Customer and notifies the Customer accordingly.
8.1.6. the Company has reason to believe that the Customer has provided the Company with false, inaccurate or misleading information either for the purpose of obtaining the Services or at any time during the provision of the Services.
8.1.7. the Company believe that the Customer or another person at the Customer’s premises has committed, or may be committing, any fraud against the Company or against any other person or organisation by using the Services;
8.1.8. the Customer or anyone the Customer authorises to deal with us on the Customer’s behalf acts in a way towards our staff or agents which the Company reasonably consider to be inappropriate; or
8.1.9. the Customer is in breach of the Company’s Acceptable Use Policy.
8.2. If the Company suspends the Services because the Customer is in breach of these Terms and Conditions or if paragraphs 8.1.4 to 8.1.9 apply, a reconnection/administration fee of £35 plus VAT will be payable in addition to any outstanding amounts on the Customer’s account before any suspension of service is lifted. Should the reconnection require a service call out the Company reserve the right to levy an additional charge to the Customer.
8.3. The Customer may not suspend its initial order for any reason.
9.1. The Company warrants that the Company has the authority to license the Products and to provide the Services as set out within the Proposal/Quote/Support Agreement and under the terms of these Terms and Conditions.
9.2. The Company will always aim to provide the Customer with the best service possible, but the Company cannot guarantee that the Products and Services will be fault free. The Customer will inform the Company about any fault in the Services by phoning, emailing or writing to the Company’s Support team, who will aim to respond as promptly as possible.
9.3. The Company is not responsible if the Customer is not able to use the Services because the Customer equipment (for example, any PC,laptop, modem, network interface card, printer, switch, local area network or other equipment) does not work properly, is not compatible with the system, does not conform to the relevant standard or does not meet the minimum specifications or because of faults in any 3rd party networks over which the Company has no responsibility.
9.4. Where the Company is acting as a reseller in respect of any Products, the Company shall pass on to the Customer such unexpired warranties the Company receives from the manufacturer of the goods as are capable of transfer and the Company’s liability shall be limited to such guarantee as the Company receives from the manufacturer.
9.5. Except as expressly set forth in these Terms and Conditions and any Product Terms, all warranties, terms and conditions, whether oral or written, express or implied by statute, common law, or otherwise (including but not limited to any warranties, terms and conditions of fitness for purpose, description or quality) are hereby excluded to the fullest extent permitted. Please note in particular, that without limiting the generality of this clause 9.5, the Company does not warrant, represent or guarantee in any way whatsoever that our Products or Services will be virus-free, worm-free, spam-free or inaccessible to malicious code or malignant third parties.
9.6. The Customer acknowledges that software products are by their very nature susceptible to imperfections in operation and no warranty is given in respect thereof.
9.7. The Customer agrees to indemnify and hold the Company harmless from any claim brought by third parties, alleging that the proper use of the Services by the Customer has infringed any right of any kind applicable in the UK or by International legislation and regulation. The Customer shall defend and pay any direct costs or damages finally awarded against the Company arising from such claims. The Customer must promptly provide the Company with notice of such claims, full authority to defend, compromise or settle such claims and provide reasonable assistance to defend such claims at the Customer’s sole expense
10. Limitation of Liability and Non-Availability
10.1. Neither party excludes or limits its liability to the other for death or personal injury caused by its negligent act or omission or for fraudulent misrepresentation.
10.2. The Company shall not be liable in respect of any adverse effect on Services resulting from application or operation of any process by the Customer unless agreed to by the Company in writing.
10.3. Subject to the limits on liability set out in clauses 10.4 and 10.13, the Company shall be liable for any direct damage to a Customer property which is caused due to the negligence of the Company.
10.4. Subject to clause 10.1 our maximum aggregate liability for all claims made by the Customer in relation to any Products or Services provided under the Proposal/Quote/Support Agreement shall not exceed the charges paid in the previous 12 months for that Product and Service against which the claim is made, plus ten (10%) however that claim may arise including, without limitation, negligent error or omission, breach of contract, tort, misrepresentation (excluding fraudulent misrepresentation) or breach of statutory duty.
10.5. The Company accepts no liability for failure to deliver the Products or perform the Services that arise from the acts or omissions of any third party including but not limited to the Company’s suppliers or third party telecommunications providers or for any failures or faults of their equipment.
10.6. The Company will use all reasonable endeavors to provide a prompt and continuing Service. The Company will not be liable for any loss or damage to data or for any loss or damages resulting from delays, non-deliveries, missed deliveries, or service interruptions or events beyond the control of the Company.
10.7. The Customer acknowledges that the Company is not the manufacturer of any Products supplied hereunder. Save as expressly provided for in these Terms and Conditions, the Company gives no warranties in relation to the Products and shall not be liable to the Customer whether in damages or otherwise for any damage to or defect, or failure in the Products. The Customer must rely solely on any warranties given to the Customer by the manufacturer of the Products or as passed to the Customer in accordance with Clause 9.4.
10.8. Unless the Company expressly agree otherwise under a separate contract the Company is not responsible for the security of the Customer’s networks and/or systems and shall not be liable for unauthorised access thereto.
10.9. Notwithstanding any provisions of this Clause 10, but subject to clause 17.1, in the event of Critical (as defined in the relevant Product Terms) non-availability of connection or use of all of the Services or Products supplied by the Company which results in non-availability below the guaranteed level in any specific Product Terms, the Customer may be entitled to a refund in respect of any Charges. Such refund is dealt with in the applicable Product Terms. Where no specific terms are specified in the Product Terms, the Company may apply credits of 1/30th of the monthly service invoice charge to the customer for each complete 24 hour day that service is unavailable, and where PSS’s Service Desk have been notified of a fault and a ticket has been raised.
10.10. For the avoidance of doubt, simultaneous non-availability of more than one Service or Product shall not give rise to more than one claim for compensation under clause 10.9 and shall be treated as one claim only.
10.11. The Customer acknowledges that the Company is unable to exercise control over the content of any information passing over the Company connection and or the Company network. The Customer further acknowledges that the Company hereby excludes all liability in respect of any transmission or reception of information of whatever nature.
10.12. The Company shall not be liable for any failure of the Products and Services which results from any interference by the Customer or any third party which is not in accordance with the standard use of the Products or Services or following our written instructions. The Customer agrees to tell the Company immediately about any loss or damage to any part of the Products and Services on the Customer’s property or any cable or routers provided to allow the Customer to use the Products and Services and that the Customer is responsible for any loss or damage to a router or cable regardless of how it happens.
10.13. Subject to Clause 10.1, the Company does not accept liability under or in relation to any Service nor its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation, or for any other reason excluding fraudulent misrepresentation) for any loss of profits, loss of business, loss of anticipated savings, loss of sales or turnover, loss of, or damage to reputation, loss of contract, loss of customers, nor loss of use of any software or data, loss of use of any computer or other equipment or plant, wasted management or other staff time, losses or liabilities under or in relation to any other contract, nor any indirect, consequential loss or damage of any kind. For the purposes of this clause, the term “loss” includes a partial loss or reduction in value as well as a complete or total loss.
10.14. The Company shall not be liable for any loss claim or liability arising from an event of Force Majeure.
11. Payment and Payment Terms
11.1. The charges for Products and Services and their invoice due dates/ frequencies will be stated on the relevant Proposal/Quote/Support Agreement document.
11.2. All payments for Products and Services will be made under a continuous direct debit authority which the customer agrees to enter into upon signing the Proposal/Quote/Support Agreement. All payments will be due on invoice date except where any other payment terms are agreed and specified on the Proposal/Quote Support Agreement.
11.3. The Company reserves the right to pass on any additional costs arising from any increase in the cost to the Company of any Government license or permit required to provide the Services. Where the Company increases its charges as a result of such additional costs, the Customer shall be entitled to terminate this agreement on not less than thirty days’ written notice, such notice to be received by the Company within three months of the price increase taking effect.
11.4. The Company reserves the right to charge the Customer for the Products and/or Service notwithstanding the Products and/or Service not being available due to either the Customer failing to comply with their obligations under these Terms and Conditions or the Company’s reasonable instructions from time to time or a failure of the Customer’s systems.
11.5. Payment of all charges under any Proposal/Quote/Support Agreement shall be made in full and free from any deductions, rights of set-off, counterclaims or liens.
11.6. All amounts due shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Company reserves the right to apply monies held against any other account of the Customer.
11.7. Should the Company order any third party equipment or Services on the Customer’s behalf the Customer will be responsible for and shall indemnify the Company against all such costs incurred including, without limitation, any costs incurred due to a cancellation by the Customer.
11.8. Without prejudice to the Company’s other rights if the Customer fails to pay any amount on the due date:
11.8.1. the Company shall have the right to cancel any contract made with the Customer and/or to suspend services and/or deliveries.
11.8.2. the Company reserves the right to charge the Customer penalties and interest in accordance with the Late Payment of Commercial Debts Interest Act 1998 as amended.
11.8.3. the Customer shall indemnify the Company and keep it indemnified in respect of all costs (including legal fees) reasonably incurred in attempting to recover such overdue amounts;
11.8.4. the whole of the balance then outstanding to the Company by the Customer on any account whatsoever shall become immediately due and payable.
11.9. The Company may ask the Customer to make initial payments and/or a deposit.
11.10. The Customer must provide the Company with a valid and current email account to enable the Company to provide electronic invoicing to the Customer. The accuracy of that email address is entirely the Customer’s responsibility. The Company reserves the right to modify the E-billing service at our discretion.
11.11. The Company cannot guarantee uninterrupted and/or reliable access any electronic invoicing service and make no guarantees whatsoever as to its operation, availability, functionality, that it will be free of error or disruption or otherwise.
11.12. Annual Price Increases: both the Company and the Customer acknowledge that there may be annual incremental price increases effective on the anniversary each year of the Support Agreement in each year after the Initial Term expires and every 12 months thereafter. The annual price increase will be calculated by taking the contract price and increasing it by Retail Price Index as calculated for the 12 months ending on 31st March of that the year in which the Initial term expires. The customer will be notified in writing of this increase if it is to be applied each year three months before the increase comes into effect. PSS reserve the right to determine the date when the increase will take effect and notify the customer accordingly.
12. Title, Licensing and Subscriptions
12.1. The Customer acknowledges that the Company (or where applicable the third party owner) shall own and shall retain title to all Intellectual Property Rights to all Products and Services (if any) supplied pursuant to or created as a result of any Proposal/Quote and any copies thereof.
12.2. At the request and expense of the Company, the Customer shall do all such things and sign all documents or instruments reasonably necessary to enable us to obtain, defend and enforce the Company’s rights in any software and Products.
12.3. Microsoft have recently introduced New Commerce Experience (NCE) subscriptions which have their own specific Terms and Conditions applied. All legacy subscriptions are being replaced with NCE subscriptions which can be Monthly:Monthly (M:M), Monthly:Yearly (M:Y) and Yearly:Yearly (Y:Y). For customers on M:Y and Y:Y Term, any Microsoft NCE subscriptions outstanding at the Termination Date of the Support Agreement will require the remainder of the subscriptions Term to be paid in Full to the Company up to the renewal date.
NCE (M:Y) permits an increase in quantities and upgrades in the subscription with the Term End date aligning with the main NCE subscription renewal anniversary. NCE Subscription licenses cannot be reduced or cancelled during the 12 month Subscription Term. If the customer is not prepared to commit to a 12 Month Term commitment the NCE M:M subscription should be selected which allow quantity reductions or cancelling completely. This M:M subscription carries a premium monthly subscription cost.
12.4 For subscriptions that have a 24, 36, 48 or 60 month subscription term, these initial quantities of subscription costs are fixed for the period of the term. Examples are Lease Lines, Telephony, Sophos and Altaro VM and 365 Subscriptions. For additional subscriptions being added during the subscription term, the price may have increased and will be applied to the new subscriptions but the Term end date is still applied.
12.5 Early Termination charges will be applied for Term subscription contracts outstanding if a service is cancelled during the term.
13.1. Where supply of Service to the Customer relies on the provision of wayleaves, the Company will use its reasonable endeavors to ensure continuity and provision of service. If for any reason whatsoever, the wayleaves are terminated or suspended preventing the supply of service, then the Company may terminate the service to the Customer by 7 days notice in writing or by email, without any liability to the Customer in relation to future supply.
13.2. Where a wayleave is granted by the Customer the Customer will use best endeavors to ensure continuity and provision of service. If for any reason whatsoever, the wayleaves are terminated or suspended preventing the supply of service, then the Company may terminate the service to the Customer by 7 days notice in writing or by email, without any liability to the Customer in relation to future supply.
14. Privacy and Data Protection
14.1. The Customer must give the Company promptly and accurately all the information which may be needed so that the Company can perform its obligations under these Terms and Conditions. The Customer must also tell the Company immediately if any of the Customer’s details change.
14.2. By having the Services activated in the Customer’s property and/or by using them the Customer gives the Company the Customer’s consent to use the Customer’s personal information together with other information for the purposes of providing the Customer with the Services, service information and updates, administration, credit scoring, customer services, training, tracking use of our Services (including processing usage, billing, viewing and interactive data), profiling the Customer’s usage and purchasing preferences for so long as the Customer is a customer and for as long as is necessary for these specified purposes after the Customer terminate the Services. The Company may occasionally use third parties to process the Customer’s personal information in the ways outlined above. These third parties are permitted to use the data only in accordance with our instructions and in compliance with all applicable laws and regulations.
14.3. Obtaining credit reference searches against a Customer can affect their credit rating. By agreeing to receive the Services, the customer is agreeing to the Company carrying out such searches.
14.4. The Company may also, subject to the Customer’s consent, use the Customer’s personal information to contact the Customer with information about our Products and Services, special offers and rewards, as well as those of selected third parties. From time to time, the Company may contact the Customer by mail, telephone, email, other electronic messaging services (such as text, voice, sound or image messages including using automated calling systems) for these purposes. If the Customer no longer wishes to receive such communications, it should contact the Company’s Customer Support Team, or where applicable unsubscribe by electronic means.
14.5. Customer details will not be shared with companies outside of the Company Group for marketing purposes without the Customer’s consent.
14.7. If the Company uses third parties to process Customer data, the Company will put a contract in place to ensure the Customer’s information is properly protected.
14.8. The Customer has a right to ask for a copy of the Customer’s personal information which is held on file, (for which the Company may charge a small fee) and to correct any inaccuracies.
14.9. If the Customer does not pay the Customer’s bills for the Services then the Company reserves the right to transfer the Customer’s debt to a third party in which case the Company will also transfer the Customer’s personal information to that third party for them to use in connection with the recovery of the Customer’s debt. Such third party will take such action to recover the Customer’s debt as they consider appropriate and will not be acting on our behalf or to our instructions.
14.10. The Company may monitor and record phone conversations the Customer has with Company staff. The Company will use these to shape training and for compliance purposes.
14.11. The Company may for legal and regulatory purposes, but only where lawful to do so, monitor internet communications, including without limitation, any content or material transmitted over the Services.
15.1. Either party may have access to or become aware of the other party’s Confidential Information. The parties agree that any Confidential Information obtained by the other, its employees, agents or sub-contractors remains the property of the other and neither party shall disclose or use the Confidential Information of the other except to the extent necessary for the performance of these General Terms and Conditions
15.2. The Company may disclose the Customer’s confidential information as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3. The provisions of clause 15.1 shall not apply to Confidential Information that:
15.3.1. is or later becomes generally available to the public, otherwise than through any act or omission on the part of the Customer or the Company
15.3.2. the Customer or the Company can show was in their possession at the time of disclosure and which was not acquired directly or indirectly from the Customer or the Company under obligations of confidentiality
15.3.3. is information rightly acquired from others who did not so far as the acquirer was aware obtain it under pledge of secrecy from the Customer or the Company
15.3.4. is information required to be disclosed or retained by law or relevant regulatory authority.
16.1. Subject to clause 16.2, in the event of any dispute being unresolved by the Company and the Customer within a reasonable period of time being not less than 30 days, then the parties shall in good faith take the matter jointly to Alternative Dispute Resolution (ADR). The outcome of the ADR process shall then be binding on both parties, except where clause 16.3 applies.
16.2. In the event that the Service and the Customer falls under categories covered by Ofcom’s complaints and dispute procedure, then this procedure shall be followed in place of the procedure outlined in clause 16.1.
16.3. Notwithstanding the provisions of this clause 16. the provisions of clause 17.8 shall apply and either party shall be entitled to apply to the courts of England.
17.1. Neither party shall be liable for any delay in performing its obligations as a result of any circumstances beyond its reasonable control: “Force Majeure”; such as but without limitation to lightning, flood, exceptionally severe weather, fire, act of God, explosion, war, terrorism, civil disorder, strike industrial dispute (whether or not involving employees of either party), malicious damage (including virus/hacking attacks or other intentional malicious acts of third parties), compliance with a law or governmental order, rule, regulation direction, accident, third party interference, actions or omissions of third party telecommunication providers.
17.2. The Customer hereby warrants to the Company that the Customer has not been induced to enter into the Proposal/Quote/Support Agreement by any prior representations whether oral or in writing, except as specifically contained in the Proposal/Quote/Support Agreement and the Customer hereby waives any claim for breach of any such representations which are not so specifically mentioned.
17.3. No forbearance, delay or indulgence by either party in enforcing the provisions of these Terms and Conditions shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach.
17.4. The Company may assign or sub-license the service provided under the Proposal/Quote/Support Agreement to any associated company or body but subject always that this shall not affect the provision of Services to the Customer.
17.5. These Terms and Conditions together with the Proposal/Quote/Support Agreement and any relevant Product Terms supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. The Company may make additions to or modifications of any provision of these Terms and Conditions. The Company will display these Terms & Conditions on its website https://www.peaksupport.co.uk
17.6. If any provision of these Terms and Conditions is invalid or unenforceable at law, then such provision shall be severed and the remainder of these Terms and Conditions shall continue in full force and effect.
17.7. All notices that are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in the Proposal/Quote/Support Agreement. Any such notice may be delivered by email or personally or by first class pre-paid letter and shall be deemed to have been served if by hand when delivered, if by first class post 2 business days after posting and if by email when dispatched.
17.8. These Terms and Conditions shall be governed by and construed in accordance with the laws of England. Any dispute that may arise between the parties shall, subject to clause 16, be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts.