1.1 “This Agreement” means the terms and conditions set out hereunder. 1.2 “The Customer” means the individual firm or limited company specified to whom the Services are to be provided. 1.3 “The Company” means BMS Telecom’s a division of BMS Marketing Services Ltd. 1.4 “The Tariff” means the amount payable for the services. 1.5 “The Business Services” means supply of voice and data telecommunications services 1.6 “Order form” means the signing of any contract order form, clicking submit on our online order form, or receipt of an email to proceed.
2. Application of the Terms and Conditions
The terms and conditions set out herein shall apply to all contracts for the sale of services by the company to the buyer with the exclusion, which placed by the buyer and confirmed accepted by the company. No other terms and conditions shall be binding upon the parties, and this contract embodies the entire understanding of the parties and there are no promises, terms, conditions, obligations, oral or written, expressed or implied, other than those contained herein, or confirmed in writing by the company and attached here-to.
2.1 These conditions shall apply to all contracts for the sale of services by the company to the Customer with the exclusion of all other terms and conditions including any terms or conditions which the buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 The company reserves the right to alter, add and subtract from these terms and conditions at any time. The Terms and Conditions are available to view online at www.bmsmarketingltd.co.uk these Terms and Conditions replace any previously agreed and It is the responsibility of the buyer to make themselves aware of what these are.
2.3 Any variation to these terms and conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless confirmed in writing by the company.
2.4 All orders for services shall be deemed to be an offer by the Customer to purchase services pursuant to these conditions.
2.5 Signing of any contract order form, clicking submit on our online order form, or receipt of an email to proceed shall be deemed conclusive evidence of the Buyer’s acceptance of these terms and conditions.
2.6 (iii) The Customer represents and warrants that it is entering into the Agreement for the purposes of and in the course of its business.
Where the agreement is for the supply of the Business Service Conditions 1 to 12 and 21 to 29 shall apply.
3. CONTRACT TERMS
3.1 Subject to Clause 17 hereunder this Agreement and any other agreement between the company and the Client shall be upon the terms and subject to the conditions set out below to the exclusion of any other terms and conditions whether or not the same are endorsed upon delivered with or referred to in the order or any other document delivered sent or otherwise disclosed by the Client to the company. The Client has not relied upon any representations or warranties by the company save as expressly provided in this Agreement.
4. The Business Service
In order it may continue and maintain the level and quality of the Business Service provided the company reserves the right at all times to change or alter the Business Service provided under the Agreement.
5.1 The agreement so far as it relates to the Business Services shall take affect when, in the company’s discretion, the company accepts the Customer’s request to supply the Business Service. The request and acceptance shall be in writing or by any other method as the company may allow .The commencement of the Business Service may be delayed until the company is satisfied that the Customer has paid the initial deposit (if applicable) specified on the Order Form.
5.2 The Agreement will continue until determined by either party giving to the other at least 30 days prior written notice.
6.1 The prices the company charge for the Business Service are as set out in the company’s tariff schedule from time to time (current tariff schedule is on the Order Form and further copies are available on request) (the “Tariff”) which the company may vary from time to time by giving the Customer not less than 7 days’ written notice (giving the Customer the opportunity to terminate the Agreement before the variation takes affect). Notwithstanding the preceding sentence, the company may introduce reasonable temporary price changes without notice. Unless otherwise stated, prices do not include value added tax (VAT”), which must be paid in addition at the applicable rate.
6.2 The company will calculate charges by reference to data recorded or logged by the company or on the company’s behalf and not by reference to data recorded or logged by the Customer. Charges will be calculated by reference to use of the Business Services provided to the Customer by the Customer or by someone else (whether or not with the Customers knowledge or permission).
6.3 Subject to conditions 4(v), the company will normally send the customer shortly after the end of each billing period a statement for all charges and other amounts incurred by the Customer during that billing period of or in connection with the Business Service. A billing period will normally be a calendar month but the Customer may be given the opportunity to select an alternative billing period. The company may request that the customer pay the company charges by credit card payment and if so the customer must complete the appropriate section on the order form and charges will be due and payable on the last day of each billing period or as soon as afterwards as they have be calculated. If the Customer is not paying by credit card the Customer must pay the amount shown on the statement in full within 7 days of the date of the statement. Time of payment by the Customer is of essence of the Agreement.
6.4 The Customer must first pay the company a charge equal to the company’s reasonable legal and/or other expenses for (a) finding the Customer if the Customer changes its address without first notifying the company and (b) taking legal proceedings and/or any other steps to obtain payment from the Customer if it fails to pay promptly.
6.4The company may at any time ask the Customer for a deposit as security for amount payable or to become payable by the Customer under Agreement.
7. Use of the Services and Indemnity
7.1 The Customer must use the Business Services in accordance with these Conditions, any other conditions as the company may notify to the Customer from time to time by not less than 30 days’ prior written notice, the relevant provisions of the Telecommunications Act 1984 (the “Act”), any other applicable laws and regulations, the relevant provisions (notified to the Customer) of any licence granted under the Act to the Customer, the company or any supplier of services to the the company and any directions given by the Director General of the Office of Telecommunications or other competent authority (together “Applicable Requirements”).
7.2 The Customer must make sure that the Business Service is not used:
(a) for the transmission of any material which is intended to be a hoax call to emergency services or is of defamatory, offensive, abusive, obscene or menacing character ; or
(b) fraudulently or in connection with criminal offence; or
(c) otherwise in a manner which constitutes a violation or infringement of the right of any other party; or
(d) otherwise than for the purposes set out from time to time in the company’s service literature.
7.3 The customer must indemnify the company against all liabilities, claims, damages, losses and expenses which the company may incur because of any breach by the Customer of the Customers obligations under the agreement or because of the way in which the Business Service is used.
8. The Customer’s Equipment
The Customer must ensure that any telecommunications equipment which the Customer uses in connection with the Business Service is in good working order and conforms at all times to all Applicable Requirements (including without limitation, the relevant standard or approval under section 22 of the Act). The company will not be under any obligation to connect or keep connected any such equipment which the company reasonably does not conform to the provision of any Applicable Requirements. The customer must on request provide the company with all reasonable information which the company may require in relation to any of such equipment. The Customer is responsible at all times for the safety and safe custody of such equipment and for the safe use of it and the Business Service.
9. Provision of Information
9.1The Customer must provide the company with all information and co-operation which the company may reasonably require to enable the company to carry out its obligations.
If at any time the premium rate regulator (known as Phone Pay Plus at the time of writing, previously known as ICSTIS) requests information regarding a BMS Telecom’s customer as part of an investigation, The company is obliged to provide such information as part of their responsibilities as a network operator. Phone Pay Plus may subsequently make some or all of that information public.
9.2 The service provider must comply with the (PhonepayPlus) Code (or such successor version as may from time to time be issued) and any directions that are made by PhonepayPlus in accordance with it.
10. Availability and Standard of Service
10.1 Wherever possible the company will give written notification to the Customer of all scheduled Business Service maintenance alterations or suspensions which shall affect the Customer, such notice to be given at least seven (7) days prior to the scheduled event.
10.2 Wherever possible the company shall implement all scheduled Business Service maintenance, alteration or suspensions outside normal working hours of the Customers Business.
10.3 If the Customer gives notification to the company of a defect, fault or impairment in the provision of the Business Service, then the company shall use its reasonable endeavours to resolve the defect, fault or impairment as reasonable practicable.
10.4 If it is determined that the defect, fault or impairment is a result of ;
(a) any negligence wilful act omission or fault on the part of the Customer or the Customers agents or any breach of this Agreement on the part of the Customer;
(b) the failure or malfunction of the Customer’s equipment, then the company may recover from the Customer all reasonable costs incurred in remedying the defect, fault or impairment.
11.1 Without prejudice to any accrued or other rights which the Customer and the customer may respectively have, the Customer or the customer may, by written notice served on the other, terminate the Customer’s right to use the Business Service immediately in the event that:
(a) the other party is in breach of the Agreement and, if the breach can be remedied, fails to remedy it within a reasonable time specified in the notice; or
(b) a voluntary arrangement is proposed or approved in relation to the other party, or an administration order is made in relation to the other party; or a receiver or administrative receiver is appointed of any of the other party’s assets or undertaking; or a winding-up resolution or petition is passed or presented (otherwise than for the purpose of reconstruction or amalgamation); or any circumstances arise which entitle the court or creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or to make a winding-up order, in relation to the other party; or
(c) an interim order is applied for or made, a voluntary arrangement approved, a petition for a bankruptcy order is presented, or a bankruptcy or is made, against the other party, or a receiver or trustee in bankruptcy is appointed of the other party’s estate.
11.2 Without prejudice to the company accrued or other rights, The company may (a) terminate the Customers right to use the Business Service immediately by notice in writing to the Customer and (b) demand (and the Customer must at the time of that demand make) immediate payment of all charges, fees and the other amount for or in connection with the Business Service, in the event that:
(a) the Customer fails to make any payment when it becomes due to the company; or
(b) any licence of the company (or the licence of any relevant supplier to the company expires or is revoked (and in either case is not immediately replaced) or is modified in any respect which materially and adversely affects the companies ability to provide the Business Service; or
(c) a licence under which the Customer has the right to run the Customers telecommunications equipment and connect it to the companies system is revoked or amended or otherwise ceases to be valid and is not immediately replaced by another valid licence.
11.3 If the company terminates the Agreement under Conditions 10(i) or 10(ii), The company will be entitled to recover from the Customer, losses and expenses reasonably incurred by it.
If the Customer wishes to cancel the Business Service, after signing this agreement but before the Business Service commences, The company may agree to this on the basic that the company will pay to the Customer any deposit the Customer has paid in advance and the Customer must reimburse the company all costs which the company has reasonable incurred including but not limited to the cost of work done and Equipment and services supplied or to be supplied.
13. Suspension of the Service 13.1 The company may elect to suspend forthwith provision of the Business Service until further notice in the event that:
(a) The company is entitled to terminate the Business Service (but any exercise by the company of it right of suspension under this Condition shall not exclude the company’s right subsequently to terminate the Agreement):
(b) The company needs to carry out emergency maintenance to any equipment or other systems in the company’s absolute discretion; or
(c) The company is obligated to comply with an order, instruction or request of Government an emergency service organisation or other competent administrative authority.
13.2 In the event that the company exercises the right to suspend the Business Service pursuant to the above, The company shall wherever reasonable possible give prior notice to the Customer of such suspension.
13.3 Where the suspension is implemented other than as a consequence of the breach , fault or omission of the Customer, the company shall make no charge to the Customer in respect of the implementation of the suspension and/or recommencement of the provision of the Business Service.
13.4 where the suspension is implemented as a consequence of the breach, fault or omission of the Customer, the Customer shall at the company’s option pay the company all reasonable costs and expenses incurred by the implementation of such suspension and/or recommencement of the provision of the Business Service as appropriate.
14. Charges and Termination
14.1 Unless otherwise stated, prices and lease and maintenance charges and other amounts payable to the company under the Agreement do not include VAT, which must be paid in addition at the applicable rate.
14.2 In the case of Invoicing and Rebates, then
1). All individual calls will be rounded up to the nearest 10th of a penny. E.g. 10.34 pence will become 10.4 pence.
2). Monthly call totals will be rounded up to the nearest penny. E.g. 234.2 pence will become 235 pence.
3). VAT will then be added to the total and rounded down to the nearest penny e.g. 15.8 pence will become 15 pence.
1). All individual calls will be rounded up to the nearest 10th of a penny. E.g. -10.34 pence will become -10.4 pence.
2). Monthly call totals will be rounded up to the nearest a penny. E.g. -234.2 pence will become -235 pence.
3). VAT will then be added to the total and rounded down to the nearest penny. E.g. -15.8 pence will become -15 pence.
(NB – Negative values denote a payment from the company to the user)
14.3 A minimum rebate amount must be achieved before a rebate can be claimed by the customer. The rebate threshold is set at £10 excluding VAT.
14.4 Termination of an account while the rebate value is less than the rebate threshold will result in the loss of the rebate to the customer.
14.5 Transferal of numbers from one BMS TELECOMS account to another will be subject to an administration fee set at current the company’s rates.
15. Software and Documentation
Intellectual property rights in all software supplied to the Customer remain the property of the company or that of its licensor. The company grants the Customer a non-exclusive non-transferable licence to use the software for the purpose of using the Business Service and for no other purpose.
16.1 Nothing in these Conditions shall exclude or restrict any liability which the company may have for
(a) breach of any of the terms implied by section 12 of the Sale of Goods Act 1979 or section 8 of the Supply of Goods (Implied Terms) Act 1973 or (b) death or personal injury resulting from the company’s negligence (which in Conditions 22(i) and 22(ii) shall mean negligence or breach of duty as defined in the Unfair Contract Terms Act 1997) or that of the companies employees while acting in the course of their employment or (c) fraud (d) any other liability to the extent that by law it cannot be excluded, restricted or limited.
16.2 The company will be liable for physical damage to the Customer’s property (but not for loss of the type referred to in Condition 22(iv) which is caused by the company’s negligence (or that of the company’s employees or sub-contractors while acting in the course of their employment) provided that such liability shall be limited to sums actually paid to the company by the Customer for the Business Service and Equipment (where applicable) in the month in which the event giving rise to the liability occurred.
16.3 Subject to Condition 22(i) and (ii), The company’s obligations under Conditions 8, 9 and 17 are in lieu of and supersede, exclude and extinguish (and the Customer shall not rely on) any other representation, warranty, condition, collateral contract, liability or obligation whatsoever on the part of the company (without limitation, whether in contract or tort including negligence or otherwise, whether express or implied or otherwise and whether arising at common law or by statute, custom, usage, course of dealing or otherwise) in relation to the provision of the Business Service or the Equipment or in relation to the Business Service or the Equipment’s description, correspondence with sample, satisfactory or other quality or fitness for any purpose (whether or not made known to the company) for which they are required or their performance, state, condition, design or other characteristics. The Customer waives any rights and remedies which it may nevertheless have and the company’s liability is limited accordingly.
16.4 In any event, subject to Condition 22(i) and (ii), The companies liability in relation to the Agreement:
(a) the Business Service and the Equipment shall not extend to wasted expenditure, loss of business, revenue or profit or any other indirect, consequential or economic loss, injury or damage, without limitation; and
(b) shall not exceed the aggregate amount paid by the Customer under the Agreement in the month in which the event giving rise to the liability occurred.
16.5 In the event of any failure in the Business Service or the Equipment, The company shall not be liable to the Customer for any charges incurred by the Customer should the Customer direct its traffic to another carrier.
16.6 The provisions of this Condition shall continue to apply even after the Agreement has ended.
17.1 The Customer may not without the company’s prior written consent assign or subcontract any of the Customer’s rights and obligations under the Agreement.
17.2 The company may delegate or subcontract performance of all or any of the company’s obligations under the Agreement but no such subcontracting shall affect the Customer’s rights against the company, the company may assign the benefit of any of the company’s rights under the Agreement. The Customer shall not unreasonably withhold the Customer’s consent to any assignment or notation of any of the company’s obligations under the Agreement.
18. Late & Failed Payment Charges
18.1 Without prejudice to the company’s other rights, if the company does not receive any payment from the Customer when due, The company shall be entitled to a late payment charge at 4% per annum over the base rate of Barclays Bank plc in force from time to time on the overdue amount from the due date until final payment, both before and after any judgement.
18.2 In the case of a failed payment method, then
(a) Credit Card payment failure the customer shall be charged a Failed Credit Card charge of £10.
(b) Cheque payment be returned to us, The company will levy a £25 charge.
19. Force Majeure
19.1 The company will not be liable to the Customer for any loss or damage which may be suffered by the Customer due to any cause beyond the company’s reasonable control including, but not limited to, any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of government, highways authorities, other telecommunications operators or administrators or other competent authorities, war, military operation, or riot, difficulty, delay or failure in manufacture, production or supply by third parties of equipment or any access line.
20. Entire Agreement
20.1 This Agreement, and the documents and other items referred to in together represent the entire agreement and understanding between the Customer and the company in relation to their subject matter and supersede all prior understandings and representations, whether written or oral. The Agreement may only be modified in writing signed by the Customer and the company.
21. No Waiver and Severance
21.1 Failure by the Customer or by the company to exercise or enforce any right under the Agreement will not be treated as a waiver of that right and will not prevent that right or any other right being exercised or enforced on another occasion.
21.2 Any complete or partial invalidity or un enforceability of a provision in these Conditions or the Agreement for any purpose shall not affect its validity or enforceability for any other purpose or the remaining provisions; but it shall be deemed to be severed for that purpose.
22.2 Any notice, statement or other document which may be given by either party under the Agreement shall be deemed to have been given if left at or sent by post or facsimile transmission (to be confirmed by post) to an address in the United Kingdom notified by the other party in writing as an address to which notices, statements or other documents may be sent.
22.3 The company’s address for service of any notice is the address that appears on the last statement sent to the Customer or any other address the company may notify to the Customer.
22.4 The Customer’s address for service is the address which appears on the Order Form or which the Customer gave the company when applying by telephone or any other address as the Customer may notify the company.
23. Cancellation,Change,Closure or Disposal of Business
23.1No cancellations will be accepted after instructions to commence output have been issued by The company. 23.2 The buyer hereby agrees that this contract cannot be cancelled and in the event of a closure, change of location or change in style or nature of the business this agreement shall still continue and all liabilities hereunder shall accrue to the advertiser.
23.3 The buyer hereby agrees that in the event of the disposal of the business the agreement shall continue and the company will endeavour to pass on the terms, obligations and liabilities to any purchaser or successor in the title, in the event the buyer does not procure such agreement, the liabilities under this agreement shall continue to accrue to the company.
24. The Services.
24.1 The quantity and the description of the services shall be as set out in the Contract Order form and pro-forma invoice.
24.2 The Company warrants that the services will at the time of delivery correspond to the description given by the Company, either verbally or by means such as order forms, invoices etc.
24.3 The Company shall not be liable for any loss or damage (including but not limited to consequential loss or damage) arising from the use of the services.
24.4 By signing the contract order form, clicking submit on an online order form, or receipt of an email to proceed, the client and The Company shall both be bound these the Terms and Conditions of which are displayed on the companies web site.
25.1 It is always the policy of the Company to develop and improve its services. The Company, therefore, reserves the right to make any improvements to the specifications of the services.
25.2 Nothing in this Agreement shall confer, nor do the parties intend it to confer, any enforceable right on any third party and the Contracts (Rights of Third Parties) Act 1999 shall not apply.
25.3 This Contract shall be governed by the Laws of England and the parties submit to the exclusive jurisdiction of the English Courts in relation to any dispute hereunder.
25.4 The start date of the contract held between the buyer and the company is when the order form is signed by the buyer.
26. Trade Monopolies
26.1 The company retains the right to accept contracts from a similar business trade occupation or profession to that of the client.
27.1 Any notices required to be given, hereunder shall be deemed effectively served if sent through the post, in the case of the client to the last known place of business abode or its registered office. In the case of the company when sent by RECORDED delivery to:
BMS Marketing Services Ltd,
Unit 31 Moorlands Business Centre,
27.2 By interpretation this contract is deemed confirmed at the company’s place of business