Customer Services Terms and Conditions
These Terms and Conditions (the “Terms”) apply to Customers (the “Customer” or “you”) who engage Transmitair Limited a company with company number SC653239 incorporated in Scotland having its registered office at 5-6 Waverley Road, Mitchelston Industrial Estate, Kirkcaldy, FIFE, KY1 3NH (the “Service Provider” or “our”) to supply the Services (hereinafter defined).
These Terms shall apply to all agreements to engage the Services so please read them carefully. Agreement or acknowledgement of the details on an Order Form shall create a binding contract between the Service Provider and the Customer. The Terms are important as they outline your legal rights and obligations as well as our rights when you engage our Services. By engaging our Services, you acknowledge you have read the Terms and agree to be bound by them.
We reserve the right to make any amendments or variations to these Terms. Should we make any variations, we shall endeavour to notify Customers in writing as soon as practicable.
1 Definition and Interpretation
1.1 In these Terms:
“Act” means the Telecommunication Act 2003;
“Agreement” means the agreement between the Service Provider and the Customer for the provision of Services incorporating these Terms and the Order Form.
“Charges” has the meaning set out in clause 6;
“Customer Information” means the details of the Customers including without limitations, their names and address, principal contact, purchasing history, pricing and any other information relating to the Service Provider’s relationship with the Customer;
“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement save that an inability to pay is not a Force Majeure event;
“Ongoing Services” means those services to be provided on an ongoing and/or rental basis to the Customer;
“Order Form” means the form detailed in the Schedule that sets out the particulars of the Services and/or any Ongoing Services to be provided by the Service Provider at the Premises;
“Premises” means the location where the Services are to be provided;
“Services” means those services including any Ongoing Services provided by the Service Provider as detailed in the Order Form;
“VAT” means value added tax, as defined by the Value Added Tax Act 1994;
“Working Day” means any day (other than a Saturday or Sunday) on which banks are open in Glasgow for normal banking business; and
“Working Hours” means any time between 9.00am and 5.30pm on any Working Day;
1.2 In these Terms: a reference to these Terms includes the schedules;
1.2.1 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.2 a reference to a gender includes each other gender;
1.2.3 words in the singular include the plural and vice versa;
1.2.4 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.5 any reference to “writing” or “written” shall include email.
The Service Provider undertakes to use all reasonable endeavours to supply the Services to the Customer as agreed on the Order Form subject to and on the Terms of this Agreement and the Customer agrees to pay the Charges for the Services provided.
This Agreement shall continue for the duration as set out in the Order Form and thereafter shall renew for successive twelve-month periods unless terminated in accordance with the provisions of these Terms.
4 Service Provider’s Obligations
4.1 Where necessary the Service Provider will endeavour to carry out provision of the Services, by appointment and during normal Working Hours but may require with the Customer’s consent (such consent not to be unreasonably withheld or delayed) access at other times.
4.2 At the Customer’s request, the Service Provider may agree to work outside the normal Working Hours in order to provide the Services and the Customer agrees to pay the Service Provider’s reasonable charges associated with such a request, such charges set out in the Services Order.
4.3 The Service Provider will give the Customer reasonable notice of any work that is considered necessary in terms of providing the Services. If the Customer requires maintenance or repair work in relation to the Services which is deemed by the Service Provider to be unnecessary, the Service Provider shall give the Customer notice that the work is considered unnecessary and reserves the right to charge the Customer for the unnecessary work and costs incurred.
5 Conditions of use
5.1 The Customer agrees and undertakes:
5.1.1 to provide the Service Provider with all such information and assistance as it reasonably requests in order to provide the Services;
5.1.2 to use the Services in accordance with such conditions as may be notified to them in writing by the Service Provider from time to time;
5.1.3 not to contravene the Act or any other relevant regulations, legislation or applicable laws when using the Services;
5.1.4 not to use the Services in a way which constitutes a violation or infringement of the rights of any other party; and
5.1.5 to permit or procure permission for the Service Provider and any other persons authorised by the Service Provider to have access to its Premises, the Service Providers installed equipment and any other necessary equipment.
6.1 Charges for the Services, including Ongoing Services and the installation of any equipment necessary, shall be as set out in the Services Order (the “Charges”).
6.2 Where no such Charges are set out they shall be calculated in accordance with the Service Provider’s standard charges in force from time to time or as advised by the Service Provider from time to time before the date the Services Order is placed.
6.3 Usage charges payable in relation to the Services shall be calculated by reference to data recorded or logged by or on behalf of the Service Provider and not by reference to data recorded or logged by the Customer.
6.4 The Charges are exclusive of VAT (or equivalent sales tax).
6.5 The Service Provider may increase the Charges at any time by giving the Customer not less than 30 days’ notice in writing [such increase to take effect on the next anniversary of the Connection Date].
7.1 The Service Provider shall invoice the Customer for the Services within 14 days of providing the Services. Should the Service Provider provide Ongoing Services, the Service Provider shall invoice the Customer for the Ongoing Services at the start of every month.
7.2 The Customer shall pay all invoices in full, in cleared funds within 14 days of the date of each invoice to the bank account nominated by the Service Provider.
7.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date the Supplier may, without limiting its other rights, charge interest on such sums at a rate of 4% per annum above the base rate of Natwest Bank from time to time in force.
7.4 Payment of all sums due to the Service Provider shall be without any set-off whatsoever.
8 Service Suspension
8.1 Having provided the Customer with no less than 14 days’ written notice, should the Services require updating, necessary maintenance or repair, the Service Provider may at its discretion, without compensation, suspend the provision of the Services.
8.2 The Service Provider may at its discretion suspend provision of the Services until further notice without compensation having given the Customer reasonable notice in the event that:
8.2.1 the Customer is in breach of this Agreement;
8.2.2 the Service Provider is obliged to comply with an order, instruction or request of the Government, the emergency services or other competent administrative body; or
8.2.3 the Service Provider suspects that the Services are being used fraudulently.
8.3 The Customer shall reimburse the Service Provider for all reasonable costs and expenses incurred by the implementation of such suspension and/or the recommencement of the provision of the Services as appropriate, but only where the suspension is implemented as a consequence of breach, fault or omission of the Customer.
9.1 If the Customer is entering into this Agreement as a consumer so that the Services will not be acquired by the Customer in the course of a business, the Customer may cancel the provision of Services by giving notice to the Service Provider within 14 days of the Order Form being agreed or acknowledged (the “Cancellation Period”); PROVIDED THAT if the Customer has received any Services during such period the Customer shall reimburse the Service Provider for any incurred costs and expenses associated with the Service Provider’s provision of the Services in the Cancellation Period.
9.2 Any cancellation or early termination of the Services by the Customer other than in terms of clause 9.1 above is subject to the consent of the Service Provider entirely in its discretion.
10.1 The Service Provider may terminate this Agreement by giving the Customer not less than 1 month’s written notice given at any time.
10.2 Subject to the Cancellation Period, the Customer may terminate this Agreement on the expiry of the minimum duration period of this Agreement as specified on the Order Form or such rolling annual expiry date, by giving the Service Provider not less than 3 months’ written notice.
10.3 The Service Provider may terminate this Agreement with immediate effect or upon such period of notice as it may in its discretion deem appropriate, where the Customer is in material breach of this Agreement and having been notified of such breach has failed to remedy such breach within 20 Working Days of such notification.
10.4 Either party may terminate this Agreement if the other party shall become insolvent by reason of its inability to pay its debts as they fall due or shall enter into liquidation, whether voluntarily or compulsorily (other than for the purposes of a reconstruction or amalgamation) or shall have an administrator or receiver appointed in respect of all or any part of its assets or shall make any arrangement or composition with its creditors or shall suffer the making of an administration order in respect of all or any part of its assets or shall take or suffer any similar action in consequence of a debt.
11.1 The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
11.2 Subject to clauses 11.5 and 11.6:
11.2.1 the total liability of the Service Provider in respect of the Services shall not exceed the Charges payable for such Order Form, and otherwise shall not exceed the sum of the previous 6 months invoices.
11.3 Subject to clauses 11.5 and 11.6, the Service Provider shall not be liable for any consequential, indirect or special losses incurred by the Customer.
11.4 Subject to clauses 11.5 and 11.6 the Service Provider shall not be liable for any of the following (whether direct or indirect) in relation to the Customer:
11.4.1 loss of profit;
11.4.2 loss of or corruption to data;
11.4.3 loss of use;
11.4.4 loss of contract; or
11.4.5 loss of opportunity.
11.5 The limitations of liability set out in clauses 11.2 to 11.4 shall not apply in respect of any indemnities given by either party under this Agreement.
11.6 For the avoidance of doubt, the Service Provider shall not in any event be liable to the Customer or any third party for any claims, liabilities, damages, costs or losses, whether direct or indirect, or for any loss of revenue, business, anticipated savings or profit arising in connection with the failure of the Customer to comply with any or all of its obligations under this Agreement.
11.7 Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of death or personal injury caused by negligence, fraud or fraudulent misrepresentation or any losses caused by wilful misconduct.
12 Force Majeure
12.1 Notwithstanding anything else contained in this Agreement, neither party shall be liable for any delay in performing, or non-performance of, its obligations hereunder if such delay or non-performance is caused by circumstances beyond the reasonable control of the party so delaying or non-performing, including but not limited to strikes, lock outs, labour disputes, acts of God, war, riot civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, disease, pandemic, epidemic, fire, flood, storm or adverse weather conditions (“Force Majeure Event”) and such party shall be entitled (subject to giving the other party full particulars of the circumstances in question and to using all reasonable endeavours to resume full performance without avoidable delay) to a reasonable extension of time for the performance of such obligations.
12.2 If the Force Majeure Event causes a delay or non-performance continues for longer than three (3) months, the party not affected may terminate any contractual agreement under which such Force Majeure Event has occurred by giving fourteen (14) days written notice to the other party.
13.1 This Agreement represents the entire understanding between the parties in relation to the subject matter hereof and supersedes all other agreements and representations made by either party, whether oral or written.
13.2 No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
13.3 The Service Provider may, but the Customer shall not (without the prior written consent of the Service Provider such consent not to be unreasonably withheld or delayed), assign or delegate or otherwise deal with all or any of its rights or obligations under this Agreement.
13.4 Failure by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.
13.5 The Service Provider shall not use any of the Customer’s Information for any purpose other than the proper provision of the Services.
13.6 Any notice, invoice or other document which may be given by either party under this Agreement shall be in writing (except as provided otherwise) and shall be deemed to have been duly given if addressed to the party to which it is to be given and if left at or delivered by pre-paid recorded delivery mail to that party’s address as shown on the Order Form or in either case at such other address as has been notified by one party to the other or if via email, provided that such email is then confirmed by digital receipt.
13.7 Nothing in this Agreement constitutes, or shall be deemed to constitute a partnership between the parties nor make any party the agent of another party.
13.8 Any director or representative of a limited company who signs on behalf of the Customer will be deemed an authorised signatory and thereby guarantee the Customer’s acceptance of its obligations under this Agreement.
13.9 This Agreement shall be governed by and construed and interpreted in accordance with Scottish law, and the parties hereby submit to the jurisdiction of the Scottish courts.