Terms and Conditions of Service
Lexatel Ltd - General Terms of Service Provision
1. APPLICABILITY OF THESE TERMS
1.1 These General Terms of Service Provision (hereafter "Terms") apply to all services provided ("Services") by Lexatel Ltd, an Irish company (No: 592714) with its registered address at Unit 272 CoLab, Letterkenny Institute of Technology, Port Road, Letterkenny, Co Donegal, F92 RKC7, Ireland; with VAT No: IE 3444652DH ("Provider") to a company or person who has accepted the offer of Services from Provider ("Client").
1.2 These Terms apply to all Services to the exclusion of any other terms that Client seeks to impose or incorporate: those implied by trade, custom, practice, or course of dealing: and any other terms, except those agreed in writing between the authorised representatives of the parties. In particular no terms and conditions of Client's shall apply to any Services, whether or not presented to Provider (or appearing on or referenced in) Client’s enquiry, acknowledgement, purchase order, website, brochure, or other document, even if Provider has not expressly objected to them.
1.3 These Terms, together with any supplementary terms agreed in writing between the authorised representatives of the parties, constitute the entire agreement between the parties ("Services Agreement"). If there is a conflict between these Terms and such supplementary terms, such supplementary Terms shall prevail.
1.4 Client's use of the Services constitutes acceptance in full of the Services Agreement, including as it is supplemented, modified or replaced as communicated to Client from time to time.
2. BASIS OF SERVICES AGREEMENT
2.1. Provider may offer the provision of services to prospective Client, verbally, in writing or electronically; but a binding agreement is only formed when the Client logs in at www.lexatel.com with the account details provided and accepts these General Terms of Service Provision.
2.2 The Services are provided for the purposes of Client's trade, business, craft or profession, and are not intended for individual consumers.
2.3 Provider's employees or agents are not authorised to make any representations, or give advice or recommendations concerning the Services, except as confirmed by Provider in writing. In entering into the Services Agreement Client acknowledges that Client does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any error or omission in any sales literature, quotation, price list, invoice or other document or information issued by Provider shall be subject to correction without any liability on the part of Provider.
3.1 The first date of provision of services ("Commencement Date") is the date on which Client accepts the offer.
3.2 Subject to the provisions of the Services Agreement, the Provider shall provide the Services from the Commencement Date. This contract runs until its termination (Section 9).
4. SERVICE AND ACCOUNT SET-UP
4.1 Client must:
(a) ensure that at all times Client has provided Provider a working, current e-mail address for receiving notices under the Services Agreement;
(b) only provide contact and account information to Provider that is full, current and correct;
(c) not use or allow anyone to use the Services for any illegal purpose, to offend or annoy anyone or infringe their rights, or other than in accordance with Provider's or any relevant authority's instructions and applicable laws;
(d) prevent - and inform Provider immediately of - damage to, or loss or theft of, any Provider software or equipment, or possible unauthorised use of the Services.
5. PROVISION OF SERVICES AND THEIR LEVELS
5.1 Provider shall supply the Services to Client materially in accordance with the Services Agreement.
5.2 Provider shall use all commercially reasonable efforts to meet any performance dates specified in the offer or the Services Agreement, but any such dates shall be estimates only.
5.3 Provider warrants to Client that: (a) the Services shall be provided using reasonable care and skill; and (b) commercially reasonable efforts shall be used to ensure the standard of performance meets any service levels specified in the Services Agreement. Some services are obtained from third parties and service levels applicable to such services are outside Provider's control and limited to the levels offered by such third parties. Further details can be provided upon request.
5.4 The Provider shall not be in breach of the Services Agreement nor have any liability to Client for failing to provide Services or to meet any particular service levels if such failure is due to:
(a) any event outside Provider's reasonable control;
(b) an act or omission by Client or Client's officers, employees or agents or third party contractors; or
(c) failure to follow Provider’s reasonable instructions or preventive measures previously notified to Client.
6. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
As between Client and Provider, all ownership and intellectual property rights of any kind and all other rights in the Services, and any software, hardware or documentation provided to Client in connection with the Services, shall be owned by Provider. Provider grants Client at no additional charge a non-exclusive, worldwide licence to use them at Client's places of business for the purpose of making use of the Services in accordance with the Services Agreement. If the Services Agreement is terminated then all licences granted under this Section shall automatically terminate. If any transfer of ownership of, or rights in, any item is expressly agreed in the Services Agreement, then such transfer shall be conditional upon payment of all Charges and fulfilling of all other conditions set out in such the Services Agreement. Until such transfer is complete, all such items are at Client's sole risk and responsibility and Provider shall be entitled to charge Client for any loss or damage to them.
7. CHARGES AND PAYMENTS
7.1 Client has a prepay account with Provider. Client tops-up the account by making payments. The cost of the Services (“Charges”) will be deducted from the account. Charges are made up of usage costs, hardware costs and hosting costs, along with any other charges associated with the provision of Services, as varied from time to time in accordance with the Services Agreement.
7.2 Charges are exclusive of all taxes (including Value Added Tax), levies, duties, third party fees or charges and where applicable these shall be deducted from Client’s account at the appropriate rate. Charges are not refundable for any reason. The account balance is refundable only if the Services Agreement is terminated and using the method chosen by Provider.
7.3 Provider may set-off any amounts owed by Client to Provider under the Services Agreement against Client's account balance.
7.4 Charges are subject to change, in the case of:
a) call costs, these vary according to the destination being dialled. Additionally, per-destination call costs may increase or decrease during the contract term. Use of Service following a change will indicate acceptance of the change;
b) all other costs, Client is only bound by the rates agreed to. Any increase in these costs will be communicated to Client at least 14 days in advance. Client does not have to accept the increase and Client has the right to terminate the Services Agreement on the date the increase applies by notifying Provider in writing not less than 7 days before that date, otherwise the new rate is deemed to be accepted.
8.1 Provider may, at its sole discretion and without affecting any other rights which it might have, immediately suspend the provision of Services indefinitely if any of the following apply:
(a) Client’s prepay account balance is at zero or below;
(b) Client has not used any Service for 3 (three) months or more;
(c) Provider needs to carry out maintenance works to network or Services equipment;
(d) Provider has reasonable grounds to believe that the Services are being used fraudulently or illegally, or in breach of any applicable laws, regulations, of the Services Agreement or of Provider's applicable policies;
(e) Provider is obliged to comply with any law, regulation, order, instruction or request of a regulator, court, government agency, emergency service organisation, or other competent administrative or regulatory authority.
8.2. If the Services are suspended under Section 8.1(c), Provider shall, if reasonably practicable, give prior notice of such suspension to Client and use reasonable efforts to resume the Service as soon as practicable.
8.3 Provider shall not be liable for any loss, damage or inconvenience suffered by Client and Client shall not be entitled to any compensation as a result of any suspension made in accordance with Section 8.1.
9.1 Without affecting any other rights of termination, either party may immediately terminate by notice in writing the Services Agreement if the other party:
(a) has committed a material breach of the Services Agreement and failed to remedy within 10 business days after having been notified of such breach;
(b) breaches any of the terms of a the Services Agreement multiple times;
(c) becomes insolvent, has a receiver or administrative receiver appointed over it or over any part of its undertaking or assets, passes a resolution for winding up or a court of competent jurisdiction makes an order to that effect, enters into any voluntary arrangement with its creditors, ceases or threatens to cease to carry on business, or undergoes or is subject to any analogous acts or proceedings under any applicable law.
9.2 If Provider has suspended Services under Section 8.1(a) and Client has not made sufficient payments within 15 days, or under Section 8.1(b), (d) or (e) Provider may terminate the Services Agreement and cease providing Services, without further notice or liability to Client. In case of reactivation of Service, Client will pay a new setup charge in accordance with Provider's then-current price list.
9.3 Either party may terminate the Services Agreement upon 30 days written notice.
9.4 On termination of the Services Agreement for any reason:
(a) any sums payable to Provider under the Services Agreement shall become due and payable immediately;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected;
(c) all sections of the Services Agreement which expressly or by implication have effect after termination shall continue in full force and effect.
9.6 Provider shall not be liable for any loss, damage or inconvenience suffered by Client and Client shall not be entitled to any compensation as a result of any termination made in accordance with Section 9.
10.1 "Confidential Information" means confidential information (however recorded, preserved or disclosed) disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") including but not limited to:
(a) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, affairs, customers, clients, suppliers, plans of the Disclosing Party; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the Disclosing Party, or
(b) the specific terms of the Services Agreement including any pricing; but not any information that: (i) is generally available to the public other than as a result of its disclosure by the Receiving Party in breach of these Terms; or (ii) was, is or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party's knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Receiving Party; (iii) is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party; or (iv) was lawfully in the possession of the Receiving Party before the information was disclosed to it by the Disclosing Party.
10.2 The Receiving Party shall keep in strict confidence all Confidential Information disclosed to it by the Disclosing Party, its employees, agents or subcontractors.
10.3 The Receiving Party shall restrict disclosure of such Confidential Information to its employees, agents or subcontractors as need-to-know for the purpose of discharging the Receiving Party’s obligations under these Terms, and shall ensure that such employees, agents or subcontractors are subject to similar obligations of confidentiality.
10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of this disclosure as possible and then takes into account any reasonable requests of the other party in relation to the content of this disclosure.
10.5 The obligations of confidentiality in this Section 10 shall survive termination of the Services Agreement and shall endure for 12 months immediately following such termination.
11. LIMITATION OF LIABILITY
11.1 Nothing in these Terms or any the Services Agreement limits or excludes the Client’s liability to pay the applicable Charges or the liability of either party:
(a) for death or personal injury resulting from its negligence;
(b) for any damage or liability arising from such party's fraud or fraudulent misrepresentation; or
(c) for any liability which may not be excluded or limited under applicable law.
11.2 Subject to the provisions of Section 11.1:
(a) neither party shall under any circumstances be liable for: (i) loss of profits; (ii) loss of business; (iii) reduction of goodwill and/or similar losses; (iv) loss of anticipated savings; (v) loss of business or contract; (vi) loss of data or information; and (vii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) each party's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Services Agreement shall in all circumstances be limited to amount equal to the Charges – excluding hardware costs - during the 30 (thirty) day period immediately preceding the event giving rise to a claim.
11.3 Subject to the provisions of Section 11.1 Provider hereby excludes: