Terms and Conditions

Marcom Communications Ltd.

Terms and Conditions for the Sale of a Telephone System

1.    DEFINITIONS

1.1  “Agreement” means this Agreement made between Marcom Communications Ltd. and the Customer, including all documents expressly incorporated herein.

1.2   “BABT” means British Approval Board for Telecommunications.

1.3  “Bring into Service Date” means the date on which the System is first brought into use by the Customer or, in the event of delays attributable to the Customer, the date from which the System can be used by the Customer if such delays had not occurred.

1.4  “BSI” means British Standards Institution.

1.5  “Contract Value” means that sum so named in this Agreement together with any additions thereto or deductions there from agreed in writing in accordance with this Agreement.

1.6  “Customer means the party with whom Marcom has contracted to provide the System and services detailed herein and is defined on the front of this agreement.

1.7  “Documentation” means one copy of the Manufacturers Standard user and Operator Handbook(s) together with any other documentation specifically denoted in this Agreement.

1.8  “Network Operator” means a public or private telecommunications operator providing a telecommunications network or circuit regulated by statutory licence.

1.9  “Ready for Service Date” means the date upon which the Systems has passed Marcom’s standard installation test and Marcom has informed the Customer that the System is available for Pre-Connection Inspection.

1.10 “Marcom” means Marcom Communications Limited.

1.11 “Site” means the place defined in this Agreement to which Marcom will deliver the System and where required by this Agreement will undertake installation and commissioning of the System.

1.12 “Software” means all operating systems and other programs of a machine readable form that are necessary for the System to operate in compliance with the performance parameters defined in this Agreement and excluding all source material including but not limited to source code listings, object code listings, flow charts and assembler instructions.

1.13 “System” means all System hardware, software, documentation and services specified in the Agreement to be provided by Marcom to the Customer.

2.    EXTENT OF AGREEMENT

      This Agreement shall constitute the complete agreement between Marcom and the Customer and any other terms, conditions, performance criteria, guarantees or prior representations whatsoever shall be of no effect unless expressly incorporated herein. No variation of the conditions in this Agreement shall have effect unless expressly accepted in writing by a duly authorised officer of Marcom

      The Customer shall not rely upon any warranty (other than stated under Condition 13 hereof) or technical statements concerning the system, which is to be supplied under this Agreement except where such statements have been confirmed in writing, and signed by a duly authorised officer of Marcom and expressly incorporated herein. Marcom reserves the right to change the specifications and parameters of the System to be supplied insofar as such changes do not materially affect the operational performance of the System.

3.    MARCOM’S OBLIGATIONS

  Marcom shall be responsible for the following:

(a)   To obtain, where there is a statutory requirement for Marcom to do so, technical approval from the designated regulatory authority for the System to be supplied and installed in accordance with the terms of this agreement except those items which are specified by the Customer for which Marcom has disclaimed such responsibility in writing.

(b)   To supply, install and commission the System detailed in this Agreement.

(c)   To fulfil the warranty obligations defined herein.

(d)   To enter, at Marcom’s discretion, into a maintenance agreement with the Customer upon the current Marcom’ terms and conditions for provision of maintenance services and at the rates then prevailing.

4.    CUSTOMER’S OBLIGATIONS

      Marcom will at all times endeavour to liaise with and advise the Customer on all aspects of the installation programme. The Customer however, is responsible for undertaking and bearing the cost of the following unless otherwise agreed in writing by a duly authorised officer of Marcom

(a)   Technical Information

The Customer is responsible for supplying Marcom when required with all necessary technical information regarding the Site at which the System is to be installed and the Customer’s operating requirements.

(b)   Preparation of The Site.

Before delivery is due to take place the Customer shall prepare the Site in accordance with the specifications stipulated by Marcom and the Network Operator, and any extra costs incurred as a result of failure to do so, including storage costs, shall be paid to Marcom by the Customer.

(c)   Provisions of Facilities

The Customer will provide at its own expense scaffolding, unskilled labour, lifting gear, builders’ work, electric power, heating, lighting and ventilation, and where electrical supplies are required these shall be clean and stable and will be provided and maintained by the Customer at its own expense. Any cutting away and making good of floors, ceilings, ceiling tiles and panels, trenching, back filling, the supply and erection of poles and the provision of trunking or ducting shall not be supplied by Marcom unless expressly agreed in writing.

(d)   Access

The Customer shall provide Marcom and Marcom’s authorised contractors with access to the Site at all reasonable times.

(e)   Wayleaves/Approvals

The Customer shall obtain and pay for all necessary wayleaves and secure the approval of appropriate planning and other authorities as required.

(f)   Connection Approval

Although the manufacturer will be responsible for securing BABT/BSI approval of the design of the System, the Customer shall obtain the Network Operator’s consent for connection of an approved System to the relevant networks (if required). It is the Customer’s responsibility to arrange for such connection to be made together with the provision of any test lines, as may be required and top pay any connection and PCI charge, and to comply with any conditions relating to the connection. Installation of the System under this Agreement does not include any such connection. No liability shall attach to Marcom if the Network Operator denies or withdraws connection facilities to an approved System.

(g)   Other Attachments

Any other attachments to the System that are made by the Customer shall be at the Customer’s risk and the Customer shall be responsible for ensuring that hey are suitable for use with the System and comply with the Network Operator’s regulations. The Customer shall not make attachments, which diminish performance or reliability of the System.       

(h)   Self-Provision Licence (SPL) and the Telecommunications Services Licence (TSL)

The Customer is responsible for ensuring that the System will be used only in accordance with the terms and conditions of the Self-Provision Licence or the Telecommunications Services Licence, as appropriate, and as issued (from time to time) by the Secretary of State for Trade and Industry (or any special licence obtained by the Customer) and that only such private circuits are connected to the System as are permitted by such licence to be connected.

(i)    Where the provision of block or extension wiring is not included under this Agreement the Customer shall be responsible for ensuring that it is or is brought up to relevant BSI standards at its own expense and shall pay the cost of any acceptance tests carried out by Marcom in respect of it.

5.    VARIATIONS

Changes to the technical specification and configuration of the System requested by the Customer prior to delivery will only be effective if accepted in writing by a duly authorised officer of Marcom and expressly incorporated into the terms of this Agreement and their implementation will be subject to full agreement in writing having been reached on any consequential adjustment to the Contract Value and target dates.

6.    CONTRACT VALUE

      The Contract Value shall, unless otherwise specified in this Agreement, be inclusive of:

(a)   Packing and         delivery of the System to the Site.

(b)   Block wiring to the extent specified in this Agreement.

(c)   Installation where this forms part of this Agreement.

(d)   Training, to the extent specified in this Agreement.

(e)   One set of Documentation.

      The Contract Value shall, unless otherwise specified in this Agreement, be exclusive of:

(a)   Value Added Tax or other government imposts.

(b)   All items denoted as Customer’s Obligations in Condition 4 of these Conditions.

7.    PAYMENT

      Where Marcom is installing the System, payment of the Contract Value shall be due and payable without deduction, set off or counterclaim as follows:

40% of the proposed  sales value required with order
40% on delivery of equipment to site
20% on completion of works



      Where Marcom is not installing the System, payment of the Contract Value shall be due and payable without deduction, set off or counterclaim in full prior to delivery of the System to the Site.

      In the event that the Customer is unable to take delivery of the System upon the agreed delivery date, Marcom reserved the right to deliver the System into Marcom’s stores and the Customer shall be immediately liable to pay Marcom the Contract Value of the System (or the portion of it so delivered) as though delivery had been made to Site.

      Marcom shall also be entitled to recover any reasonable additional costs incurred as a result of the Customer’s delay. Payments shall be made within thirty (30) days of the date of Marcom’s invoice and payment shall not be prevented by minor defects, which do not materially affect operational use, but Marcom shall remedy such minor defects within a reasonable time where it is Marcom’s responsibility to do so.

      Where payments are not received within thirty (30) days of the date of Marcom's invoice Marcom reserves the right to:

      Suspend deliveries on this and any other order held with the Customer, its Parent Company, Subsidiaries or Associates.

and/or

      Recover such sums by deduction of monies otherwise due by Marcom to the Customer, its Parent Company, Subsidiaries or Associates.

and/or

      Charge interest at four per cent (4%) above Midland Bank base rate per month or part thereof on the unpaid sum for that period the sum remained properly due.

and/or

      Enter onto the Customer’s premises and recover the System delivered or installed. In such an event Marcom shall return any sums previously paid less sums reasonably incurred by it in the delivery, installation and recovery of the System, including depreciation in the System’s subsequent resale value.

8.    SYSTEM AND INSTALLATION SPECIFICATION

      The System and installation specification shall be that which has been agreed upon in writing and expressly incorporated into this Agreement and any prior representations be they written or verbal shall be of no effect unless expressly incorporated herein. Where no such specification is detailed in this Agreement the System and installation details in Marcom’s quotation shall apply.

      The illustrations and engravings in Marcom’s catalogue and data sheets are intended to display the general features of the System and in the information contained in such publications shall not form part of this Agreement.

      All drawing, sketches and information provided by the Customer in relation to wiring and installation are contractual documents upon which Marcom has placed reliance. Any changes, errors or omissions to such drawings, sketches or information shall form a change to this Agreement with regards to which Marcom reserves the right to make additional charges, amend timescales or offer an alternative system, whichever is appropriate and suitable.

9.    RISK AND TITLE

      Risk in the System shall pass from Marcom to the Customer upon delivery to the Site (or, in the event of instalment delivery to the Site, risk shall pass as and when each instalment is delivered to the Site) and the Customer shall indemnify Marcom against all risks in respect of the same and accept full responsibility to provide insurance cover at full replacement value.

      For the purpose of this Condition the term System includes any item leased by Marcom for demonstration purposes.

      Risk in all other equipment, such as tools and plant taken on to the Customer’s Site by Marcom for the purpose of this Agreement, shall pass to the Customer when brought onto the Site by Marcom (or its agents or sub-contractors) until such equipment is removed from the Site except in so far as any damage to such equipment is due to any act of negligence on the part of Marcom

      Title to System hardware shall pass to the Customer only when Marcom has received full payment for the System hardware. However, title to System Software and the media on which it is embodied and copyright and other intellectual and industrial property right in System Software and in all data and information embodied in System hardware shall at all times remain with Marcom and its licensors.

10.  DELIVERY

      The Contract Value includes packaging and delivery to the Site nominated by the Customer in this Agreement by any means at Marcom’s disposal.

      Unless otherwise agreed in writing the System price comprised in the Contract Value is based upon the normal delivery timescale for the System. Where an extended delivery timescale is required by the Customer Marcom reserved the right to deliver to storage and claim payment accordingly.

      Delivery will be recorded by a Marcom Delivery Note and the Customer or his nominated agent shall acknowledge receipt by countersigning a copy of the Delivery Note if appropriate

      Where Marcom site personnel sign to acknowledge receipt of deliveries they do so as the Customer’s agent unless an agent is otherwise notified to Marcom by the Customer in writing prior to delivery. In this instance such personnel as are nominated by the Customer must be available to receive the System.

      Marcom shall repair or at Marcom’s option replace free of charge any part of the System which is lost or damaged in transit, provided that Marcom is given written notification of such loss or damage within such times as will enable Marcom to comply with the carrier’s Conditions of Carriage or, where delivery is made by Marcom’s own transport, within five (5) working days after counter signature by the Customer or the Customer’s agent of the Delivery Note.

11.  INSTALLATION/READY FOR SERVICE

            Where installation is included the Contract Value is based on the work being carried out during Marcom’s normal working hours and proceeding without hindrance to completion and may be increased if the Customer requests the work to be carried out at any other time or if the work is interrupted for reasons outside Marcom’s control. All ordinary cutting away is included but not making good or redecorating or work normally carried out by a specialist tradesman. Marcom or its contractors will install and commission the System and, within seven (7) days of Marcom giving notice of completion of installation, Marcom will carry out its standard installation tests to show that the System is Ready For Service.

            The System shall be Ready For Service on completing such installation tests and on completion of the same the installation will be complete and the System accepted by the Customer. The Customer will then sign Marcom’s Completion Certificate. If Marcom is unable to proceed with the tests for reasons within the control of the Customer or the Customer’s other contractors, then the System shall be deemed accepted seven (7) days after Marcom’s notice of completion of installation.

            If any part of the System fails to pass the installation tests they will be repeated within a reasonable time and on the same conditions.

            The System will not be deemed to have failed the installation tests on account of minor failures that do not materially affect its operational use, but Marcom will be obliged to rectify such failures within a reasonable time.

            Marcom will assist the Customer in arranging the Network Operator’s Pre-Connection Inspection (PCI) and be in attendance during PCI. This does not relieve the Customer from its obligations defined in Condition 4.

            If the System is subject to testing by the Network Operator Marcom accepts no responsibility for the timely conduct of such tests, and final introduction into service will occur at a date to be agreed with the Network Operator.

            Following PCI, Marcom will assist the Customer in arranging for the Network Operator to connect the System to the network. This does not relieve the Customer from his obligations under Condition 4.

            Following connection to the Network the System will be brought into Service.

12.   SOFTWARE

12.1       The System Software is supplied under licence in object code form and current release state on suitable media together with a configuration manual. Source materials will not be supplied under any circumstances whatsoever.

12.2       Marcom grants the Customer non-exclusive licences to use the System Software solely with and for the operation of the System (and for no other purpose), for so long as the Customer wishes to use System Software for that purpose.

12.3       The Customer may not copy, modify or merge any part of the Systems Software, media or configuration manual, nor part with possession of the same not deal with them in any manner prejudicial to Marcom, without Marcom’s prior written consent. Any copies for which consent is given must reproduce the copyright notice of Marcom and its licensors.

12.4       The Customer undertakes to hold the Software and any associated manuals and/or documentation in strict confidence and not to make copies or make available or otherwise disclose them to any third party without the prior written consent of Marcom

13.  WARRANTY

            Marcom transfers any manufacturers warranty to the customer and the customer agrees it is the manufacturer that warrants that the System will be free from defects in materials and workmanship for a period of twelve (12) months after the Ready For Service Date, subject to the System being properly used for its designed purposes and to proper maintenance, in appropriate environment conditions.

            Marcom will use all reasonable endeavours to assist the customer should they need to pursue the manufacturer during the twelve month period to repair (or at its sole option replace) defective items of Systems hardware and to correct defects in System Software, free of charge, where the defect arises as a result of faulty materials or workmanship but the manufacturer shall have the right to charge for repair, replacement or correction of defects due to any other cause.

            Marcom will pass on to the Customer any warranty offered to Marcom by a third party manufacturer of equipment which is attached to the System.

            Marcom shall have no liability to the Customer for any defects that occur outside the scope of this warranty.

            The Customer acknowledges that the System Software cannot be tested in every possible permutation and accordingly Marcom does not warrant that System Software will be free of all defects or that its use will be uninterrupted.

            The Customer assumes responsibility for ensuring that performance data

equipment, Systems features and facilities stipulated by it are sufficient and suitable for the Customer’s purpose save in so far as its stipulations or orders are in accordance with

Marcom’s written advice.

            All other express or implied terms, conditions or warranties in respect of quality,

fitness, use or conditions of the Systems are excluded.

14.   LIABILTY FOR DELAY

            All target dates quoted on the face of this Agreement are subject to prompt receipt

by Marcom in accordance with agreed timescales of all necessary information from the

Customer to enable Marcom to put the work in hand. In respect of the target dates, time

Shall not be of the essence.

            The completion date will be subject to extension if any incidence of delay is the

result of the Customer’s instructions or lack of instruction, industrial dispute or any other

cause beyond Marcom’s reasonable control.

            If the Ready for Service Date of all or part of the System is delayed by more than

two weeks for reasons other than industrial disputes or any other causes outside Marcom’s reasonable control, for each further complete week of delay there shall be deducted from

the Contract Value one quarter of one per cent (0.25%) of the value of such portion or

portions only of the System as cannot in consequence of the said failure be made Ready for Service. The amount so deducted shall not in any case exceed five per cent  (5%) of the

Contract Value. Such damages shall be in full and final satisfaction of all liability of Marcom

to the Customer for all losses of whatsoever kind the Customer may have suffered as a

result of Marcom’s delay.                     

15.     LIABILITY FOR ACCIDEDNTS AND DAMAGE

            Marcom shall indemnify the Customer against damage to property (other than the System) and death or injury to person to the extent caused by the negligence of Marcom or its personnel, but not otherwise, provided that:

(a)         Marcom and its insurers are immediately notified of any claim and have full power to negotiate and settle any claims.

(b)         Marcom’s total liability for damage to property shall be limited to £1,000,000.

            The Customer shall similarly indemnify Marcom and shall maintain or procure appropriate insurance for damage to Marcom’s property (to the same limit) to the extent caused by the negligence of the Customer or its personnel, agents or contractors.

16.  INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHT

            Marcom will indemnify the Customer against all actions, claims demands, proceedings, damages, charges and expenses arising from or incurred by reason of any infringement of third party United Kingdom patents, design or copyright as a consequence of the Customer’s use of the System subject to the Customer.

(a)         Promptly notifying Marcom of any allegation of infringement

(b)         Making no prejudicial statement without Marcom’s consent;

(c)         Permitting Marcom to conduct and settle all negotiations and litigation.

      Such indemnity shall not apply to any infringement due to the use of the System in combination with other equipment and/or software not supplied by Marcom, or which is due to Marcom’s having followed the Customer’s design or instructions, or which is due to the System being used in a manner or for a purpose not specified by or disclosed to Marcom prior to the date of execution of this Agreement.

      If a claim of infringement is made or in Marcom’s opinion is likely to be made in respect

of the System. Marcom shall have the right but not the obligation to procure for the Customer the right to continue using the System or to modify it in any way that it becomes

non-infringing provided that the System remains capable of performing substantially the

same functions as that originally supplied and the indemnity set out in Condition 16.1 shall

not apply to the extent that Marcom exercises any such right.

     

17.  EXCLUSION AND LIMITATION OF LOSS

      Except in the case of death or personal injury due to the negligence of Marcom or its subcontractors and liability of Marcom arising under Part 1 of the Consumer Protection Act 1987, Marcom shall not be liable for loss of contracts, profits, anticipated savings, revenue, business, data, software programs, use or fraudulent used of the System, or interruption In

the use or availability of data, stoppage to other work or indirect or consequential loss, howsoever arising including from negligence, breach of contract and/or statutory duty before and after any termination of the Agreement.

      Subject to the express exceptions set out in this Agreement Marcom’s liability

howsoever arising including from negligence, breach of contract and/or statutory duty before and after termination of this Agreement shall in no event exceed the Contract Value.

18.  TERMINATION OF AGREEMENT

      Without prejudice to other rights Marcom shall have the right forthwith to terminate this Agreement and claim any resulting losses or expenses if:

(a)   The Customer commits a breach of this or any other Agreement with Marcom and fails to remedy such breach within a reasonable time.

(b)   The Customer commits an act of bankruptcy, or compounds with its creditors, or a petition or receiving order in bankruptcy is presented or made against it; or a resolution or petition to wind up the Customer is passed or presented (otherwise than for reconstruction or amalgamation), or a receiver or manager is appointed, or the Customer is deemed under Section 123 of the Insolvency Act 1986 to be unable to pay its debts.

(c)   The Customer fails to enter into an appropriate third party leasing or financing arrangement.

19.  LEASING/FINANCE ARRANGEMENTS

      Where the Customer has entered or will enter into third party leasing or financing arrangements this will not affect or invalidate the Terms and Conditions of this Agreement, save that title in the System (excluding software) shall pass to the third party finance provider only when Marcom has received full payment of the Contract Value.

      Other than as described above the Terms and Conditions of this Agreement have precedence over the terms and conditions of any third party leasing or financing arrangement entered into by the Customer.

20.  FORCE MAJEURE

                              Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances beyond the affected party’s reasonable control.

21.  CONFIDENTIALITY

      The Customer undertakes that, whether this Agreement continues in force or not, it will keep confidential all information communicated to it by Marcom and will not without the prior written consent of Marcom disclose the same to any third party.

22.  ASSIGNMENT

      Marcom

Marcom may assign or transfer this agreement to any other company.

      Customer

The Customer may only assign or transfer this Agreement with Marcom’s prior written agreement.

23.  VALIDITY

If any provision of this Agreement becomes invalid, illegal or unenforceable, the other provisions of this Agreement shall not be affected thereby.

24.  LAW

      This Agreement shall in all respects be construed and operated as an English contract and in conformity with English Law.

      The legal construction of these conditions shall not be affected by their headings.

      Marcom and the Customer hereby irrevocably agree to submit to the exclusive jurisdiction of the English Courts.

25.  EFFECT

This Agreement becomes effective when signed by a duly authorised Marcom’s signatory. These conditions shall prevail over any others proposed by the Customer or implied by trade customer or practice. Marcom’s failure to object to any other terms and conditions shall not be deemed as a waiver of this condition.            

THIRD PARTIES

Third parties have no rights under the contracts (Rights of third Parties) Act 1999 or any amendments to or re-enactment of it to enforce any provision of this agreement.