ProActive Networks Ltd (Company Registration No 5387547)

1. Definitions

1.1. In these conditions (unless the context otherwise requires)
“Act” means the Telecommunications Act 1984 and any amendments modifications re-enactments or replacements of the Act that have or may be made from time to time.
“ProActive Networks Ltd” means ProActive Networks Ltd and its successors in title and assigns from time to time.
“Agreement and Services” means the telecommunication services such as fixed line and mobile voice calls including any network features and line rentals, internet access and standing monthly charges, telephone systems and maintenance, non- geographic numbers and other services and products agreed from time to time and as set out overleaf.
1.2. Words in the singular shall include the plural vice versa references to any gender shall include the others and references to legal persons shall include natural persons and vice versa
1.3. The headings in these conditions are intended for reference only and shall not affect their construction.

2. General

2.1. These conditions shall apply to the Agreement to the exclusion of any terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by the Customer to Proactive Networks
Ltd, and the provision of these conditions shall prevail unless expressly varied in writing and signed by a director on ProActive Networks Ltd’s behalf. Where ProActive Networks Ltd specifically agrees terms with the Customer in writing those terms shall prevail over any conflicting terms in these conditions.
2.2. Any concession made or latitude allowed by ProActive Networks Ltd to the Customer shall not affect ProActive Networks Ltd’s strict rights under the Agreement.
2.3. In any particular case any of these conditions shall be or be held to be invalid or shall not apply to the Agreement the other conditions shall continue in full force and effect.

3. The services

3.1. ProActive Networks Ltd undertakes to provide the customer with the services covering fixed line and mobile voice calls including any network features and line rentals, internet access and standing monthly charges, telephone systems and maintenance, non-geographic numbers and any other services and products agreed from time to time and as set out overleaf to these terms and conditions.
3.2 If appropriate the Customer authorises ProActive Networks Ltd, its Partners agents, employees or other authorised personnel to reprogram its telephone equipment and/or install access equipment charged at its standard rates in order to provide the Services.
3.3. Where ProActive Networks Ltd installs access equipment it remains the property of ProActive Networks Ltd at all times and may be removed at ProActive Networks Ltd’s sole discretion if the Customer ceases to use the Services from ProActive Networks Ltd. At the sole discretion of ProActive Networks Ltd, the customer may be charged for the removal of this equipment.
3.4. All times dates and periods given for performance of the Services are given in good faith but without any responsibilities on ProActive Networks Ltd’s part.
3.5. ProActive Networks Ltd’s telephone network services will be provided via numerous telephone network providers and not limited to a single supplier. ProActive Networks Ltd may switch between alternative telephone call providers at any time in its supply of the services for the customer so long as its quoted charges to the Customer do not vary outside the conditions of this agreement.
3.6. ProActive Networks Ltd may switch between telephone network suppliers if it believes this to be in the best interest of the customer or ProActive Networks Ltd.

4. Agreement period and termination

4.1. Unless a specific term is agreed the Agreement shall come into force on and with effect from the date this Application/Agreement is accepted and authorised for and on behalf of ProActive Networks Ltd and shall continue for the minimum period of twenty four months, (subject to the other provisions for termination contained in these conditions) prior to which, either ProActive Networks Ltd or the Customer shall give three months written notice to the other to terminate this agreement on the twenty fourth month. If either party do not serve notice prior to the expiry date of the minimum period then the agreement will continue in force for another minimum twenty four month period with the same notice provision. The Customer shall provide such notice to ProActive Networks Ltd via recorded delivery mail. Mobile telephone contracts will be for twenty four months, unless otherwise stated. An upgrade/replacement mobile handset or mobile tariff change constitutes agreement to continue the contract for a further twenty four months.
4.2. If concessions have been provided from ProActive Networks Ltd to the customer such as but not limited to free rental periods, hardware, access equipment, telephone system programming etc associated costs must be paid in full to ProActive Networks Ltd at its standard rates should this contract be terminated within a period of less than twenty four months or agreed additional period extensions.

5. Responsibility of the customer

5.1. The Customer undertakes not to contravene the Act or any other relevant regulations or licences regarding the provision and use of the Services.
5.2. The Customer shall ensure that its telecommunications apparatus shall at all times conform to the relevant standard or standards (if any) for the time being designated under the Act and ProActive Networks Ltd shall not be under any obligation to connect or keep connected any of its apparatus if it does not conform or if in ProActive Networks Ltd’s reasonable opinion, it is liable to cause death, personal injury or damage to property or to impair the quality of any Services provided by ProActive Networks Ltd or to put ProActive Networks Ltd in breach of ProActive Networks Ltd’s obligations to any third party. The Customer shall also comply with all relevant statutes, regulations or other legislation in force from time to time.
5.3. The Customer undertakes to use the Services in accordance with the Act and any licence granted there under. The Customer further undertakes not to use the Services:
(a) as a means of Communication for a purpose other than that for which the Services are provided or
(b) for the transmission of any material which is defamatory offensive or of an abusive or obscene or menacing character or is of a nature which if transmitted would constitute a criminal offence or which infringes the rights of any third party including, but not limited to contractual rights and intellectual property rights or
(c) for any purpose which ProActive Networks Ltd may notify to the Customer from time to time by reason of any relevant legislation which comes into force.
5.4. The Customer shall indemnify ProActive Networks Ltd from all losses, fines, damages, claims, costs and expenses suffered or incurred by ProActive Networks Ltd arising from, or in connection with the customer’s use of the Services in contravention of any other provision of this condition or in breach of any other provision of the Agreement.

6. Access to the customer’s premises and provision of information by the customer to ProActive Networks

6.1. To enable ProActive Networks Ltd to perform its obligations under the Agreement.
(a) The Customer shall permit or procure permission for ProActive Networks Ltd, ProActive Networks Ltd’s Partners, Agents, Employees and any other persons authorised by ProActive Networks Ltd to have access to the customers premises and shall provide such reasonable assistance and Information as ProActive Networks Ltd shall request from time to time.
(b) ProActive Networks Ltd will generally carry out work during normal working hours, but may request that the customer provides ProActive Networks Ltd with access the Customer’s premises at other times, but such requests shall not oblige the Customer to provide such access.
(c) at the Customer’s request, ProActive Networks Ltd may agree to work outside normal working hours and the Customer shall pay ProActive Networks Ltd’s usual additional charges for complying with such a request.
6.2. If the Customer requests maintenance or repair work which is found to be unnecessary, the Customer may be charged for the work and the costs incurred. ProActive Networks Ltd will give notice that work is considered unnecessary prior to completion or raising relevant charges.
6.3. If the Customer ceases to use the Services the Customer must allow ProActive Networks Ltd, its partners, servants or agents full access to its premises such that any access equipment remain the property of ProActive Networks Ltd can be removed and ProActive Networks Ltd’s charges for the removal of any such equipment and any related system programming must still be paid.

7. Suspension of services by ProActive Networks

7.1. ProActive Networks Ltd may at its sole discretion upon giving the Customer written or verbal notice elect to suspend forthwith provision of the services until further notice without compensation on notifying the Customer either orally or in writing in the event that:
(a) the Customer is in breach of any term of the Agreement or
(b) ProActive Networks Ltd are obliged to comply with an order, instruction or request of the UK Government an emergency services organisation or other competent administrative authority or
(c) The Customer has failed to pay any invoices by the due payment date either related or non-related to ProActive Networks Ltd or related companies when due.
7.2. Where any suspension of the Services is implemented as a consequence of the Customers breach, fault or omission (but not otherwise) the customer shall reimburse ProActive Networks Ltd for all costs and expenses incurred by ProActive Networks Ltd’s implementation of such suspension and/or the reconnection of the provision of the Services as appropriate. 7.3. If ProActive Networks Ltd suspend all or part of the telephony service(s) to the Customer for non-payment of invoices in accordance with ProActive Networks Ltd’s payment terms, ProActive Networks Ltd reserve the right to invoice the Customer for the remaining monthly rental/service charges and/or any unbilled products or services that have not been already invoiced at the time of the suspension of the service(s) for the minimum twenty four month contract period for fixed line and/or mobile phone monthly rental for which if invoiced payment will be due immediately to ProActive Networks Ltd.
7.4. If ProActive Networks Ltd exercises its right to suspend the Service(s) this shall not restrict ProActive Networks Ltd’s right to terminate the Agreement.
7.5. Where ProActive Networks Ltd supply non-geographic numbers on termination of this agreement, the(se) number(s) remain the property of ProActive Networks Ltd.

8. Liability

8.1. In these conditions ProActive Networks Ltd does not exclude or restrict its liability for death or personal injury resulting in its negligence or the negligence of ProActive Networks Ltd’s employees while acting in the course of their employment and nothing contained within the Agreement shall detract from any of the Customer’s rights or ProActive Networks Ltd’s obligations which it is under English law prohibited from seeking to exclude or limit.
8.2. In the event that either the Service fails or for any other reason and the Customer’s calls are made via diverted to or leaked to another telephone call provider ProActive Networks Ltd shall not be liable for any extra costs incurred by the customer with that company. ProActive Networks Ltd shall only be entitled to charge the customer ‘Usage’ charges for calls which the customer makes through ProActive Networks Ltd pursuant to the Agreement.
8.3. ProActive Networks Ltd does not guarantee that its telephone call charges will at all times be the lowest for every type of call.
8.4. Nothing in these conditions shall impose any liability upon ProActive Networks Ltd in respect of any non performance or Services which are not performed in accordance with the Agreement arising out of the Customer’s own acts omissions negligence or default.

9. Charges, billing & payment

9.1. Unless otherwise agreed in writing the Customer agrees to pay for the Services by direct debit within fourteen days of the date of ProActive Networks Ltd’s invoice. Such invoices to be rendered during the continuance of the Agreement. Mobile telephone line and ‘features’ rentals will be paid monthly in advance. Fixed telephone line rentals and Broadband rentals and associated features will also be paid monthly in advance to accommodate ProActive Networks Ltd’s service providers invoicing methods.
9.2. The Customer shall pay the price for the Services as set out in this agreement or in ProActive Networks Ltd’s quotation. ProActive Networks Ltd shall be entitled to decrease its prices at any time. Such decreases to apply to all Services provided after the date of the decrease and to be reflected in ProActive Networks Ltd’s next invoice. ProActive Networks Ltd shall be entitled to increase its charges at any time and shall give to the Customer 30 days notice of any such increase. Such increase shall take effect after the expiry of such notice. Upon notification of such increase the Customer shall be entitled to cancel the Agreement immediately by giving ProActive Networks Ltd notice in writing within 30 days of the date of its notice of the increase in the charges if, and only if, the increase is greater than ten percent of the current service price at the time the price increase notice is served. 
9.3. ProActive Networks Ltd shall prepare and send to the Customer invoices each calendar month, covering charges for the services or in such form and manner as shall be agreed with the Customer. Usage charges payable, shall be calculated by reference to data recorded or logged by ProActive Networks Ltd and not be referenced to any data recorded or logged by the customer and such data shall in the absence of manifest error be final and binding.
9.4. The time of payment shall be of the essence of the Agreement.
9.5. Without prejudice to any other rights it may have, ProActive Networks Ltd is entitled (both before and after any judgement) to charge daily interest on amounts outstanding 14 days after the date of its invoice until payment in full is received at a rate equal to 2 percent per annum above HSBC base lending rate as current from time to time. Interest shall continue to accrue not withstanding termination of the Agreement.
9.6. All sums referred to in the Agreement are stated exclusive of Value Added Tax and any other taxes of a similar nature which may from time to time be introduced which shall (if applicable) be charged by ProActive Networks Ltd and payable by the Customer in the same manner as the usage charges.
9.7. The price for the services shall be due in full to ProActive Networks Ltd in accordance with the terms of the Agreement and the Customer shall not be entitled to exercise any set-of, lien, or any other similar right or claim.
9.8. You agree to pay ProActive Networks Ltd all charges due within 14 days of the date of the ProActive Networks Ltd bill by direct debit or by an alternative method agreed by ProActive Networks Ltd in writing.
9.9. You agree to pay the Connection, Monthly Access, Rentals, Call Charges and all other products and services shown in the contract.
9.10. If you are disconnected for non-payment at our discretion you will pay a charge of £33 plus VAT for each reconnected mobile connection, fixed line CLI or non-geographic number.
9.11. If your payment is late, cancelled or dishonoured, we reserve the right to charge you £25 plus VAT per fixed line CLI, mobile connection or non-geographic number each time for our administration costs.
9.12. You will be charged £33 plus VAT for Migration of each mobile and non-geographic numbers at the discretion of ProActive Networks Ltd made for disconnecting the Equipment or service from one network or tariff and connecting it to another network or tariff.
9.13. You will be charged £33 plus VAT for Porting of each mobile and non-geographic numbers at the discretion of ProActive Networks Ltd made for disconnecting the Equipment or service from one network and connecting to a different network.
9.14 If a ProActive Networks Ltd customer wishes to port to another network or service provider, ProActive Networks Ltd will provide them with a Porting Authorisation code (PAC Code) after which they will have 28 days to port to another network or service provider. If the customer is still in contract with ProActive Networks Ltd, a PAC code will not be issued to them until the contract term expires. The customer will be expected to pay any outstanding sums owed to ProActive Networks Ltd to the end of the contract, including all PAC code charges before they can port their number(s)
9.15. ProActive Networks Ltd do not accept responsibility for delays in the billing of any charges. Any delay that might happen this does not alter your liability.
9.16. If you want to challenge an item on your bill, you must do so within one month of the date of the bill.
9.17. Calls made on overseas networks will be billed in sterling. This is calculated using the exchange rate applicable on the date the call was processed by the overseas network. This may differ from the exchange rate applicable at the time when the call was made.
9.18. ProActive Networks Ltd measure the duration of each call to a fraction of a second. Summarised and itemised call costs are calculated in the same way.
9.19. ProActive Networks Ltd have a minimum call duration of 59 or 99 seconds for all landline calls unless agreed in writing by ProActive Networks Ltd
9.20. All calls over £0.75 will be itemised free of charge on your bill. Fully itemised bills itemising all calls may attract a duration surcharge of up to 50% on your bill at the sole discretion of ProActive Networks Ltd
9.21. In the event that the Customer terminates this agreement before the minimum term or fails to give the three months written notice period prior to the expiry of the minimum twenty four month term in accordance with this agreement, ProActive Networks Ltd reserves the right to invoice the customer for loss of line rental, number rental and call revenue for the non completion of the minimum term or the short notice given. The sum will be calculated equal to the Customers average monthly bill from the start of the contract if applicable or the estimated monthly customer spend, which will be at the discretion of ProActive Networks Ltd. The Customer shall also pay any outstanding bills for other services, fixed line rentals, number rentals or mobile phone rentals that are also due for the remaining contractual monthly outstanding rental charges.
9.21. If the customer does not terminate this agreement giving the three months notice period prior to the expiry of the minimum term, the agreement will continue in force for another minimum twenty four month period.

10. Termination of the agreement

10.1. Notwithstanding any other provision of these conditions, either ProActive Networks Ltd or the Customer (without prejudice to it other rights) may terminate the Agreement with immediate effect by giving notice in writing to the other, in the event that:
(a) the other is in breach of any provision of the Agreement and (where such breach is remediable) fails to remedy that breach within 14 days of a written notice from the non-defaulting party specifying the breach.
(b) the other is subject to bankruptcy or insolvency proceedings which shall mean bankruptcy proceedings, becoming insolvent, making any composition or arrangement with creditors or an assignment for their benefit, any execution, distress or seizure;
10.2. Notwithstanding any other provision express or implied in these conditions, ProActive Networks Ltd (without prejudice to its other rights) may terminate the agreement with immediate effect, in the even that:
(a) any licence under which the Customer has the right to run it’s telecommunications system and connect it to ProActive Networks Ltd’s system is revoked, amended or otherwise ceases to be valid or
(b) The Customer fails to make any payment when it becomes due to ProActive Networks Ltd.
10.3. On termination of the agreement for any reason, the Customer must pay ProActive Networks Ltd any outstanding fixed line, mobile phone line rental, usage and all other charges for the Customer’s usage of the services up to the date of termination.

11. Matters beyond reasonable control

11.1. Neither ProActive Networks Ltd or the Customer shall be liable to the other for any loss or damage which may be suffered by the other due to any cause beyond its reasonable control including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightening or fire strike, lockout, trade dispute or labour disturbance, any act or omission or government, highway authorities, other public telecommunications operators or other competent authority, production or supply of services by third parties.

12. No liability for loss of profits and data

12.1. ProActive Networks Ltd shall not be liable for any costs, claims, damages or expenses arising out of its negligence or its breach of contract or statutory duty calculated by reference to the Customer’s loss of profits or income or production or by reference to the accrual or of any such costs, claims, damages or expenses on a time basis.
12.2. ProActive Networks Ltd shall not be liable to the Customer for any costs, claims, damages or expenses arising as a result of its negligence or for its breach of contract or statutory duty calculated by reference to any loss of anticipated savings or profits whatsoever or for the corruption or destruction of date.

13. Limitation of liability

13.1. ProActive Networks Ltd’s aggregate liability to the Customer for any loss or damage of whatsoever nature and how so ever caused shall be limited to and in no circumstances shall exceed a sum equal to one months billing for the Services by ProActive Networks Ltd to the Customer to a maximum of £50,000, based on the average billing for the Services by ProActive Networks Ltd to the Customer over the previous 3 months or since the commencement of the Agreement if the contract commenced within 3 months of the date of the claim concerned.
13.2. Fraud or fraudulent misrepresentation;
13.3. The supplier shall not be liable howsoever for any additional costs incurred by the customer in the event the Customer’s calls are made via, diverted to, or leaked to another telephone call provider or in the event the Services supplied to the Customer are used by a third party with or without the Customers knowledge and or consent; and
13.4. The supplier shall not be liable howsoever in respect of any loss or costs incurred by the Customer as a result of any act, omission, neglect of default of any third parties employed, sub-contracted or used by the Supplier to provide the Services or the goods
13.5. The Supplier shall not be liable for any claims arising from Customers being subject to fraudulent use of the Service or from a third party succeeding in “hacking” into the customers phone lines and call costs will be paid in full by the customer and the Customer warrants herein that they have taken out their own suitable protection against fraud and or “hacking” and shall utilise the same to the extent that the Services are subject to any such fraud and or “hacking”. The customer herein indemnifies the supplier in full and at all times on an ongoing basis to the extent that the Customer is in breach of this clause 13.5 and the Supplier incurs or suffers any costs, expenses, damages, liabilities or losses.

14. Representations

14.1. No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of ProActive Networks Ltd’s partners, agents or employees shall be construed to enlarge, vary or override in any way any of these conditions.

15. Confidentiality

15.1. Neither ProActive Networks Ltd nor the Customer shall whilst the Agreement is in force or thereafter disclose any confidential information of the other nor any details of the other parties commercial or technical activities or policy except insofar as is strictly necessary for fulfilling its obligations hereunder and except for any disclosure required by statute or law, and saved for information which is subsequently enter the public domain.

16. Assignment and sub-contracting

16.1. ProActive Networks Ltd may assign the Agreement with the Customer or subcontract the whole or any part of the performance of the Services to any person, firm or company without the Customers prior written consent.
16.2. The Customer shall not assign or delegate or otherwise deal with all or any of its rights or obligations under the Agreement without ProActive Networks Ltd’s prior written consent.

17. General

17.1. The Agreement represents the entire understanding between the Customer and ProActive Networks Ltd in relation to the subject matter heard and supersedes all other agreements and representations made by either the Customer or ProActive Networks Ltd, whether oral or written and the Agreement may only be modified if such modifications is in writing and signed by a duly authorised representative of the Customer and a ProActive Networks Ltd Director.
17.2. Failure by either the Customer or ProActive Networks Ltd to exercise or enforce any right conferred by the Agreement shall not be deemed to be a waver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any occasion.
17.3. Any notice, invoice or other document which may be given by either the Customer or ProActive Networks Ltd under these conditions shall be deemed to have been duly given if left at or sent by first class post to an address stated overleaf. Invoices or other documents may be sent to the other parties unusual or last known place of abode or business and such notice shall be deemed to be served immediately if left at the address for notice or 48 hours after posting if posted as aforesaid.
17.4. The Agreement shall be governed by the construed and interpreted in accordance with English law.