TERMS & CONDITIONS FOR THE PROVISION OF SERVICES
This Agreement sets out the basis upon which ICM
will provide services to you (the Customer). You should read these terms
and conditions carefully and if you wish to proceed, confirm your acceptance
by clicking on the button marked "Accept" below (online) or signing where
appropriate (offline). Part A contains the general terms and Part B terms
relating to specific services. ICM will consider any reasonable request
to change these terms and conditions. Please contact us at the address shown
in Part B. No change to these terms and conditions or the Order Form shall
be effective unless specifically agreed in writing by ICM.
DEFINITIONS
The following terms shall have the following meanings:
Agreement - these terms and conditions and the Order Form;
"AUP" means ICM's Acceptable User Policy detailed on ICM's Website as varied
from time to time.
"Carrier" meanse any supplier to ICM from time to time of telecommunications
services in respect of the Service;
"Charge(s)" means the amount(s) payable by the Customer (excluding VAT)
for the Services as set out in the Order Form;
"Commencement Date of Services" means the date from which the Services shall
commence as detailed in the Order Form;
"Customer" meanse the organisation or person requiring the Services whose
details are set out in the Order Form;
"ICM" - means the party as detailed in the Order Form;
"IPR" means all patents, copyright, moral rights, design rights, know-how,
database rights, trademarks and service marks together with applications
to register any of the above (where applicable);
Order Form - the form submitted by the Customer in respect of the Services;
Services - the services subscribed for as detailed in the Order Form, specifications
of which are set out either in the relevant
Product Information Sheet displayed on the ICM Website or Part B;
Term - means the term of this agreement as set out in the Order Form;
Website - www.icm-computer.co.uk.
| Part A |
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| 1 |
SCOPE OF AGREEMENT |
| 1.1 |
This Agreement shall commence upon acceptance of
the Order Form by ICM. |
| 1.2 |
Under this Agreement ICM shall provide the Services
to the Customer and the Customer shall pay the Charges. |
| 1.3 |
Both parties understand that ICM may engage the
Carrier to provide those Services or other sub-contractor or agent. |
| 1.4 |
The Customer acknowledges that occasionally ICM
and/or its Carrier may have to temporarily interrupt the Service or
change the specification of the Service for operational reasons or
because of an emergency. In these circumstances the period of such
maintenance shall be kept to a minimum and the Customer shall have
no claim against ICM or the Carrier for any such interruption or change.
|
| 1.5 |
Any variation to this Agreement or the Order Form
must be specifically agreed in writing between the parties. |
| 2 |
CUSTOMER'S OBLIGATIONS |
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| 2.1 |
The Customer agrees that it shall: |
| 2.1.1 |
ensure that it complies with ICM's AUP (as appropriate)
and such protocols and standards as are issued from time to time in
respect of the use of the Services. |
| 2.1.2 |
not (nor allow any other person to) use the Services
in any way to send or receive any material that could constitute or
encourage conduct that would be considered a criminal offence or which
is either offensive, abusive, indecent, obscene, pornographic, fraudulent,
libellous, defamatory, menacing, criminal or likely to cause annoyance
or distress to any third party or likely to incite or promote illegal
activities in any jurisdiction or be in breach of any confidence copyright,
privacy or any other rights of other parties; |
| 2.1.3 |
be responsible for the cost of all charges for
telephone or cable services which it incurs while using the Services;
|
| 2.1.4 |
be solely responsible for registering any software
extracted or downloaded through the Services and paying any related
charges thereafter and for making all necessary backups of its data; |
| 2.1.5 |
indemnify ICM and the Carrier against any loss
or costs which ICM or the Carrier may suffer from the Customer's use
of the Services; |
| 2.1.6 |
in using the Services, comply with all applicable
legislation (including but not limited to matters arising under the
Data Protection Act 1998 and the Regulation of Investigatory Powers
Act 2000); and |
| 2.1.7 |
in the event that it is necessary for an ICM representative
to attend the Customer's site, take all reasonable precautions to
protect the health and safety of such personnel including where practical
ensuring the presence of a Customer representative at the site during
the performance of the Service and pay such callout charges as agreed.
|
| 2.2 |
The Customer hereby confirms that all information
provided to ICM is correct and will inform ICM of any changes. The
Customer accepts liability for any additional charges or costs incurred
by ICM as a result of any incorrect information that the Customer
provides. |
| 3 |
PAYMENT |
|
|
| 3.1 |
The Charges under this Agreement shall be paid
by the Customer in advance by direct debit and in accordance with
the Order Form. Unless agreed otherwise in writing, any payments not
settled by direct debit will be subject to an administration fee of
£25.00. Charges are stated net and therefore shall be subject to the
addition of Value Added Tax (VAT) and any other similar taxes which
government legislation may apply to this Agreement from time to time. |
| 3.2 |
ICM may alter the Charges to reflect any increased
cost to ICM of providing the Services. ICM shall provide the Customer
with not less than 3 months notice of any proposed increase to the
Charges and the Customer shall have the right to determine this Agreement
at the date such proposed increase to the Charges is due to come into
effect by serving notice not less than 30 days notice in writing. |
| 4 |
TERM OF AGREEMENT |
|
|
| 4.1 |
This Agreement will be effective from the Commencement
Date of Services and will continue for the Term, after which the provisions
of this Agreement will continue to apply for further 12 month periods
(unless agreed otherwise) at the then current Charges until terminated
by either party serving not less than 90 days notice in writing to
the other party to expire on the Anniversary date of the Commencement
Date of Services. |
| 4.2 |
Either party may without prejudice to any other
rights forthwith terminate this Agreement by notice in writing to
the other party if the other party becomes bankrupt, insolvent, or
goes into liquidation (other than for the purpose of amalgamation
or reconstruction) or makes any composition with its creditors or
has a receiver or administrator appointed of the whole or any part
of its assets. |
| 4.3 |
The Customer may terminate this Agreement forthwith
by written notice in the event that ICM is in material breach of this
Agreement and fails to remedy such breach within 7 days following
written notice from the Customer to do so. In such circumstances the
Customer may claim a refund to the value of the pro rata proportion
of the Charges paid for the unexpired period of [the Term]. |
| 4.4 |
ICM may terminate this Agreement in the event that
the Customer has committed a material breach of any of these terms
and conditions including (without limitation) failure to make payment
of the Charges, failure to comply with the AUP or where the Customer's
use of the Service is in breach of legal requirements. |
| 4.5 |
Without prejudice to ICM's right to terminate for
material breach of this Agreement, ICM may suspend provision of the
Service in order to investigate allegations of failure to comply with
the AUP or where ICM reasonably believes that the Customer is in breach
of this Agreement until such breach is remedied by the Customer. For
this purpose, the Customer agrees to co-operate with ICM's reasonable
requests for information regarding the Customer's use of the Service
and supply such information without delay. |
| 4.6 |
ICM may terminate the provision of the Services
at any time as a result of the Carrier's actions or otherwise as required
in order to comply with legal requirements. In such circumstances
ICM shall endeavour to provide 14 days notice of any such termination
and shall refund to the Customer the pro rata proportion of the Charges
paid in advance for the unexpired period of [the Term]. |
| 5 |
LIMITATION OF LIABILITY |
|
|
| 5.1 |
Each party will indemnify the other party in respect
of claims for direct physical injury or death, where such is attributable
to the negligence of their employees or other authorised representatives. |
| 5.2 |
ICM shall not be liable for any indirect or consequential
losses arising out of its performance under this Agreement nor for
any pure economic loss, anticipated profits, revenues, anticipated
savings, loss of clients, goodwill, business opportunities, wasted
overheads, loss or corruption of data, software or configurations
wherever held or any other losses not flowing directly and naturally
from the performance of this Agreement. |
| 5.3 |
Save as otherwise provided in clauses 5.1 and 5.2
above, ICM's total liability to the Customer arising out of or in
connection with this Agreement, however that liability arises, shall
be limited to the greater of 150% of the Charges paid by the Customer
to ICM in the twelve months prior to the date on which the Customer's
claim arose or £1,000. |
| 6 |
CONFIDENTIALITY, INTELLECTUAL PROPERTY RIGHTS
AND LICENSING |
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|
| 6.1 |
Each party shall take all reasonable precautions
to ensure that its employees shall retain in complete confidence any
confidential information, or trade secrets of the other, its business
or its clients of which they may become aware as a result of performing
their duties under this Agreement. |
| 6.2 |
The Customer acknowledges that all title, rights
and interest in the Services (including but not limited to ownership
of all IPR) shall remain with ICM, the Carrier and any other relevant
suppliers. The Customer shall not take any action or omit to take
any action which will or is likely to jeopardise, limit or interfere
in any manner with such title, right or interest. |
| 7 |
GENERAL TERMS |
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|
| 7.1 |
The terms and conditions of this Agreement shall
prevail in the event that there shall be any variance with the terms
and conditions of any order submitted by the Customer for the Service. |
| 7.2 |
No person who is not a party to this Agreement
may enforce any term of it and the Contracts (Rights of Third Parties)
Act 1999 is excluded to the fullest extent permitted by law. |
| 7.3 |
All written notices required under this Agreement
shall be served at the relevant address shown in Part B (or such other
address as notified in writing to the other party) by recorded postal
delivery or timed facsimile transmission. |
| 7.4 |
If and in so far as any part or provision of these
Terms is or becomes void or unenforceable it shall be deemed not to
affect the other provisions of this Agreement and the parties shall
agree a valid and enforceable provision to substitute for any such
invalid or unenforceable provision with the intent to the greatest
extent possible to achieve the economic and commercial objectives
of the invalid or unenforceable provision. |
| 7.5 |
The failure by either party to insist on the performance
of any of the provisions of these Terms shall not be construed as
a waiver or a relinquishment of such rights to future performance. |
| 7.6 |
ICM or the Customer shall not be liable for any
delays in meeting any of their obligations under this Agreement, where
such is due to causes beyond their reasonable control. |
| 7.7 |
ICM reserves the right to use names and other information
from the Order Form for internal purposes only or within its group
of companies. ICM may from time to time wish to notify the Customer
of additional services provided by ICM or third parties that ICM believes
may be of interest. If the Customer does not want to receive such
information the Customer may write to ICM at the address for notice
expressing such requirement. |
| 7.8 |
The Customer accepts that ICM may, in accordance
with legal requirements, have to disclose information to governmental
organisations (including the police) in respect of the Customer's
use of the Services. Subject to any legal prohibitions to the contrary
ICM will notify the Customer of such disclosure as soon as reasonably
possible. |
| 7.9 |
This Agreement sets out the entire agreement between
the parties. All prior agreements, statements, understandings, representations
(unless made fraudulently) and negotiations, either written or oral,
are superseded by this Agreement. |
| 7.10 |
Neither party shall assign or otherwise transfer
this Agreement other than to a member of the same group of companies
without first giving the other party prior written notice of such
intended assignment or transfer. |
| 7.11 |
Each party shall comply with its obligations under
the Data Protection Act 1998 and any updates thereto. |
| 7.12 |
This Agreement shall be governed by the Laws of
England and the parties hereto agree to submit to the exclusive jurisdiction
of the English Courts. |
Part B
This part B relates solely to the supply
of the ADSL or SDSL services (as described on the ICM Website and referenced
in the Order Form). ICM will be relying on third party telecommunication
suppliers (the Carrier) and its ability to provide the Customer with the
Service is, in part, reliant on them.
DEFINITIONS
In addition to the definitions set out in Part A,
for the purpose of this Agreement, the following words shall have the following
meanings:
"Acceptance Tests" means the tests carried out by ICM or our representatives
to determine the proper operation of the Service;
"Communications Line" means the telecommunications system specified to ICM
by the Customer in the Order Form that the Customer has notified ICM that
the Customer uses to obtain telecommunications services over the Customer's
telephone network at the Premises;
"Equipment" means the equipment supplied through ICM as part of the Service;
"Location" means the customer premises as specified in the Order Form.
| 1 |
INSTALLATION |
| 1.1 |
ICM shall use reasonable endeavours to install
or procure the installation of the Equipment at the Location on or
before any installation date as specified or agreed with the Customer.
Any installation date is an estimate only and time shall not be of
the essence. |
| 1.2 |
ICM shall supply the Customer with the relevant
information to enable the Customer suitably to prepare the Premises
for the activation of the Customer's line. |
| 1.3 |
ICM, or its representative, shall carry out the
Acceptance Tests. |
| 1.4 |
The Customer acknowledges and agrees that: |
| 1.4.1 |
the Service will depend upon the Customer's particular
Communications Line. If the Carrier determines that it is not practicable
to supply the Service ICM shall have the right to terminate this agreement
without any liability to the Customer; |
| 1.4.2 |
after the activation of the Communications Line
the Customer may suffer a temporary loss of telephone service. This
will be reinstated following installation as soon as reasonably possible
without any liability to ICM; and |
| 2 |
CUSTOMER OBLIGATIONS |
| 2.1 |
The Customer must notify ICM immediately in writing
of any allegation of infringement of any intellectual property rights
prompted by the Customer's use of the Service. The Customer may not
make an admission relating to an alleged infringement. The Customer
must allow ICM, or at our election, the Carrier to conduct all negotiations
and proceedings and give ICM or the Carrier all reasonable assistance
in doing so. The Customer must allow any part of the Service to be
modified so as to avoid continuation of the alleged infringement. |
| 2.2 |
The Customer undertakes not to resell the usage
of the Customer's service to third parties. |
| 3 |
SUPPLY OF EQUIPMENT |
| 3.1 |
All Equipment supplied within the Professional
Series Product range (as referred to in the Order Form) shall remain
the property of the Carrier or ICM as applicable. |
| 3.2 |
The Customer shall provide BT approved filters,
modem and network equipment suitable for use with the Service where
Wires only service products are contracted for (as referred to in
the Order Form). |
| 4 |
SUPPLY OF EQUIPMENT |
| 4.1 |
The customer shall be responsible for providing
and maintaining all carrier lines necessary for ICM to deliver the
Service. |
| 4.2 |
In the event that the carrier line is disconnected,
ICM reserves the right to charge a reasonable reconnection fee. |
| 4.3 |
Cancellation of the service before the Commencement
Date of Services will result in a cancellation fee of £75 + VAT. |
| 5 |
NOTICES |
| 5.1 |
All notices to be provided under this Agreement
must be sent (in the case of the Customer) to the Location or such
other Customer address as notified in writing to ICM or (in the case
of ICM) to: ICM Managed Availability Services Limited, ICM House, Oakwell Way, Oakwell Park, Birstall,
W Yorkshire, WF17 9LU. |
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