General Terms and Conditions
1. GENERAL
This Agreement (the ”Agreement”) details all the terms and conditions
upon which the Services are supplied or the Equipment hired by OrbitalNet
Limited to the Customer unless expressly varied in writing and signed by a
representative of OrbitalNet Limited.
2. DEFINITIONS
Unless the context otherwise requires, the terms and expressions below
shall have the meaning which is ascribed to them as follows:
Circuit: means the link (which serves) for the transmission of signals; it
also includes a virtual circuit
Date of availability of a Service: means the date at which a Service of
OrbitalNet Limited is made available to a Customer, as evidenced by the
installation completion form, whether or not it is actually used by such
Customer.
Duration of Interruption: means the time in minutes of any interruption
of Service commencing at the time when OrbitalNet Limited is advised by
the Customer of the interruption.
Interruption of Service: means as it relates to a Circuit or Service, the
total technical inability to transmit signals.
Service(s): means telecommunications Service(s) as well as any other
Service supplied by OrbitalNet Limited.
Customer: shall mean the person specified overleaf including any receiver,
administrator or other person appointed to manage the affairs of the
Customer.
Equipment: shall mean the Equipment rented to the Customer by
OrbitalNet Limited including all replacements and renewals of such
Equipment and the component parts thereof and all accessories and
additions thereto.
OrbitalNet: shall mean OrbitalNet Limited.
3. DURATION OF THE AGREEMENT
This Agreement shall be effective from the date hereof and shall be
effective for the Minimum Period stated overleaf which shall commence on
the Date of availability of service. After the end of the Minimum Period the
Agreement will continue for a further period until either party shall give
forty five (45) days written notice to the other to expire at the end of the
Minimum Period or any time thereafter provided always that nothing in this
clause shall prevent OrbitalNet terminating the Agreement under clause 9
hereof.
4. TERMS OF SERVICE
4.1 In consideration of the monthly rental fees and installation fees
stipulated in any schedules of this Agreement, OrbitalNet undertakes to
rent the Equipment to the Customer and to supply to the Customer the
Services described in the Schedule of Services to be provided.
4.2 OrbitalNet will indicate the proposed date the Service will become
available. The Customer is deemed to have accepted the delivery of the
Service on the date it becomes available for use by the Customer,
whether or not the Customer makes use of the Service.
4.3 The Customer shall make available to OrbitalNet, free of charge,
adequate space, the required electrical facilities and appropriate access
to its premises for the purposes of installation, inspection, repair or
maintenance of any Equipment required for performance of this
Agreement. The Customer will afford OrbitalNet or its representatives
all facilities reasonably required to enable delivery and installation of
the Equipment to take place
4.4 OrbitalNet reserves a fixed period from 00.01 a.m. to 03.00 a.m. every
Sunday to undertake maintenance and changes relating to the Services
in order to ensure their continuous operation. In addition, OrbitalNet
may from time to time proceed with such trials, verifications,
adjustments and maintenance relating to the Services as may be
necessary. Every attempt will be made to schedule such work in
advance at a time convenient to the Customer, and credit shall be
granted to the Customer for any interruption resulting from such loss of
Service; however no credit shall be granted for interruption to or loss of
Service where maintenance, repair or replacement occurs as a result of
damage caused to the Equipment by the customer, its agents or
representatives, whether by negligence or otherwise.
4.5 The Equipment shall at all times remain in the ownership of OrbitalNet
and the customer will have no rights in the Equipment other than as
mere bailee (notwithstanding that it may have become affixed or
attached to any land or building). OrbitalNet may however assign and
sell its rights under this Agreement and its rights in and to the
Equipment. The Equipment must only be used by the customer and
(unless OrbitalNet otherwise agrees in writing) must be kept at the
address of the Customer set out in this Agreement. The Customer shall
not sell, assign, charge or create any sub-lease over or otherwise
dispose of or abandon the Equipment.
4.6 The Customer shall at all times insure the Equipment covering the full
replacement value of the Equipment against all risks. The interest of
OrbitalNet in the Equipment shall be noted on the policy and, in the
event of loss or damage to the Equipment shall be payable direct to
OrbitalNet; the customer authorises OrbitalNet to give a good and valid
receipt in respect of such policy monies.
4.7 Upon the discontinuation, whether under clause 3, clause 9 or
otherwise, of any Service provided under this Agreement the Customer
shall allow OrbitalNet to take possession of the Equipment installed in
the premises occupied by the Customer and for this purpose OrbitalNet
shall be entitled freely to enter upon any premises occupied by or under
the control of the Customer. The Customer shall indemnify OrbitalNet
for the full cost of the Equipment in the event that repossession of the
Equipment is rendered impossible by reason of total loss, unauthorised
removal, refusal of access or for any other reason whatsoever.
4.8 The Customer shall be responsible for any costs and expenses incurred
by OrbitalNet and for its failure to allow OrbitalNet to take possession of
the Equipment when requested by OrbitalNet including but not limited
to any costs and expenses incurred in locating, repossessing or
recovering the Equipment.
5. CUSTOMER COVENANTS
The Customer undertakes and agrees:
5.1 To take all reasonable and proper care of the Equipment and to keep
the same in good and serviceable condition (reasonable fair wear and
tear excepted) and to indemnify OrbitalNet against loss or damage to
the Equipment howsoever caused.
5.2 To ensure that any instructions or manuals supplied by OrbitalNet or
the manufacturer of the Equipment are or will prior to the Equipment
being brought into use be fully understood and well observed by the
Customer and any person who will be responsible for use of the same.
5.3 To take such further steps as may be properly recommended by
OrbitalNet or the manufacturer of the Equipment or may otherwise be
necessary to ensure that the Equipment will be safe and without risk to
Health and Safety when properly used by the Customer or authorised
users.
5.4 Only to operate the Equipment and permit the Equipment to be
operated in a proper manner and by persons who are competent to
operate such Equipment.
5.5 Not to make or cause or permit to be made any alteration, amendment,
modification or addition to the Equipment without OrbitalNet’s prior
consent in writing.
5.6 To keep the Equipment suitably housed.
5.7 To permit OrbitalNet and any person duly authorised by OrbitalNet to
enter on any land or premises in which the Equipment is for the time
being sited so as to inspect and/or repair the Equipment.
6. BILLING
6.1 Invoices and Statements of Account will be transmitted electronically
via OrbitalNet’s network to the Customer’s network or computer
processor unless requested otherwise in writing.
6.2 OrbitalNet shall bill the Customer a calendar monthly rental fee in
advance for the Services and Equipment which OrbitalNet supplies.
Rental for Service and Equipment will be counted from the date the
Service becomes available to the Customer whether or not use is made
of the Service and Equipment. Part months chargeable for the initial
rental period shall be charged on a pro-rata basis.
6.3 The rental fee shall be paid by Banker’s Standing Order on the fifteenth
(15th) day of each month of Service.
6.4 Installation fees and pro-rata initial rental period fees shall be included
with the first instalment under the Banker’s Standing Order.
6.5 Any billing discrepancies shall be presented to OrbitalNet in detail and
in writing within ten (10) days following the date of an invoice or
Statement of Account. Any adjustment to the Statement of Account
agreed to between OrbitalNet and the Customer shall be included on
the following Statement of Account.
6.6 At the discretion of OrbitalNet interest compounded at the rate of two
percent (2%) per calendar month or such sum as specified under the
Late Payment of Commercial Debts (interest) Act 1998 or similar,
whichever shall be the higher, may be charged on any account in
arrears. Furthermore OrbitalNet shall have the right to suspend any
Service in the event that the Customer fails to pay within fourteen (14)
days any account notified to the Customer as being in arrears. During
any such period of suspension by OrbitalNet the rental fee remains
payable in full.
6.7 The customer shall be liable for any costs and expenses incurred in
enforcing any clause in this Agreement.
7. LIABILITY
7.1 In providing the Services described in the Schedule of Services to be
provided, OrbitalNet its directors, officers, employees or agents shall
have no liability whatsoever with respect to the data which OrbitalNet
transports. Except as otherwise provided herein, OrbitalNet makes no
representations or warranties of any nature whatsoever with respect to
the Services. OrbitalNet does not guarantee the continuous operation of
the Services or Equipment. Nor can it be held liable toward the
customer or any other person for any damage whatsoever due to
interruption of any Service provided by OrbitalNet
7.2 The Customer shall indemnify OrbitalNet against all third party
claims resulting from defacing of or damage caused to the premises
occupied by the Customer by reason of necessary works carried out to
effect the installation of the Equipment.
7.3 The Customer shall indemnify OrbitalNet against all claims
resulting from the use or operation of any Circuit or any Equipment by the
Customer in
a manner which is contrary to the applicable laws or regulations.
8. FORCE MAJEURE
OrbitalNet shall not be held liable for any direct or indirect economic loss,
including but not limited to damages resulting from loss of use, loss of
profits, loss of business revenue or for third party losses arising from the
interruption of Service of any nature or for any reason whatsoever,
including for any circumstance arising from force majeure or for any
circumstance or event that is beyond the control of OrbitalNet, including
without limitation, accidents, labour difficulties or the inability to obtain
materials or labour necessary for the performance of the obligations of
OrbitalNet from its customary suppliers.
9. TERMINATION OF THE AGREEMENT
9.1 OrbitalNet shall have the right to terminate the Services and the
Agreement forthwith in the following events:
9.1.1 If the Customer fails to pay within twenty one (21) days any account
notified to the Customer as being in arrears.
9.1.2 If the Customer uses or allows the use of the Services of OrbitalNet
for a purpose or in a manner which is contrary to the applicable laws
or regulations.
9.1.3 If the Customer deliberately, negligently, or in carrying out its own
installation, causes the loss of or damages to the Equipment of
OrbitalNet.
9.1.4 If the Customer fails to comply with or commits any breach of this
Agreement.
9.2 OrbitalNet shall have the right to terminate the Services and the
Agreement without prior notice and remove its Equipment in the event
of bankruptcy, voluntary assignment of assets, receivership, liquidation
or other events of cessation of activities of the Customer for any reason
whatsoever.
9.3 The termination of the Services and the Agreement by OrbitalNet does
not discharge the Customer from its obligation to pay any amount
which is owing pursuant to this Agreement at the time of such
termination of service, including all installation fees. Furthermore, early
termination penalty equal to one half of the total value, as at the date
of termination, of the amounts payable during the remainder of the
agreed Minimum Period of Service relating to all Services shall also be
payable immediately upon such termination.
10. CANCELLATION
If the Customer cancels or delays a request for Service after signing this
Agreement, but prior to the date of delivery of the Service, the Customer
shall pay all of the costs incurred for the purposes of the implementation of
this Agreement. Implementation activities are considered to have begun
once the Customer signs this Agreement.
11. SEVERABILITY
If any provision of the Agreement is declared to be invalid or unenforceable
by any competent authority, such finding shall not affect the validity of the
remaining provisions of the Agreement unless deletion of the provision
declared to be invalid or unenforceable renders the providing of the
Services hereunder impossible.
12. CONFIDENTIALITY
Each of the parties hereto will take reasonable steps to hold the terms and
conditions of this Agreement on a confidential basis and all acts of the
parties taken in pursuance thereof, except for information which becomes
part of the public domain through no fault or action of such party.
13. GOVERNING LAW
This agreement shall be deemed to be made in the country of the supplier
and shall be governed and interpreted according to the laws of England and
Wales.
14. NOTICE
All notices required or permitted to be given under the terms of this
Agreement shall be in writing and sent to the Customer at its address
specified in the Agreement, and in the case of notices sent to OrbitalNet at
its address specified in the Agreement. Notices may be given by certified or
registered mail, by private courier, by tele-facsimile, or by OrbitalNet’s EMail
service. Any notice so given shall be deemed to have been given and
received on the fifth day of postal service following mailing given by
certified or registered mail or when so personally delivered or sent by
private courier, by tele-facsimile, or by OrbitalNet’s E-Mail service. Either
party may change its address for notice by giving notice in the appropriate
manner.