TERMS AND CONDITIONS
Business to Business
At Naked Telecom we aim to provide the products and services for our customers based on our philosophy and company values of openness, honesty, trust and transparency that underpin our brand name. All businesses require terms and conditions (T&Cs) for trading and although these T&Cs run into many pages they are here to help our customers and ourselves so that we both understand each other’s obligations. We start with definitions that are used in the telecoms industry, as we know these can be confusing for customers in the ever-changing world of telecommunications.
In these conditions (unless the context otherwise requires):-
Naked Telecom Ltd is registered as a limited company in England and Wales with Registration Number 08552626
Naked Telecom Ltd trades as Naked Telecom, Naked Telecom Limited and/or Naked Telecom Ltd or where abbreviated as NT
“The Act” means the Telecommunications Act 1984 and any amendments, modifications, re-enactments or replacements of the Act that may be made from time to time
“BT” means British Telecommunications plc also known as BT Openreach of 81 Newgate Street, London EC1A 7AJ registered in England No. 1800000
“BT Network” means the BT’s public switched telecommunications network (PSTN)
“Business Day”: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business
“Call” means a signal, message or communication which can be silent, visual or spoken on each Line that the Carrier provides at a Site
“the Contract” means the contract between Naked Telecom and the Customer for the provisions of the Services.
“Carrier” means a licensed public switched telecommunications network provider and includes BT. To provide your service we may use one or more telecom Carriers
“Carrier’s Network” means the network of the Carrier that is being used to provide you with a telecommunication service
“Commencement Date” is when the Order is deemed to be accepted when Naked Telecom issues written acceptance of the Order at which point and on which date the Contract shall come into existence
“Customer” means the person, firm, company, entity or organisation with whom Naked Telecom contracts for the sale of Products and/or supply of Services
“Configuration Services” means configurations of customer or supplier equipment such as routers and computers, or to telecoms services from a network supplier or customer telephone or IT network equipment
“Configuration Specification” means any specification for the Product, including any relevant plans or drawings, agreed in writing by the Customer and Naked Telecom
“Design Led” means a proposal from Naked Telecom that is tailored to meet the needs of the Customer based on the requirements gathered by us from the Customer
“End User” and “Customer” means a company taking the service on their line
“Electronically” means using electronic communications including without limit the internet, web site, email, telephone and fax
“Failure of the Service” means the continuous total loss (due to a fault on BT’s Network) or the ability to make or receive Calls, or the continuous total loss of a related service
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Line” means a connection to the BT Network or to the Carrier’s Network.
“Site” means a place at which Naked Telecom agrees to provide the Service.
“Service Provider” means Naked Telecom Ltd.
“the Services” means the telecommunications services to be supplied by us pursuant to the Contract.
“Telecom Equipment" or sometimes referred to as "Customer Premise Equipment (CPE)” means equipment (including any software) which is owned by Naked Telecom Ltd or the Carrier and placed on a Site by Naked Telecom Ltd or BT or anyone acting on Naked Telecom’s or the Carrier’s behalf for the provision of the Service.
“Termination Charge” refers to a fee as so arising in the event of the Customer giving notice to terminate the Contract before the end of the contracted term or whereby we terminate the Contract by us suspending service as a consequence of a Customer breach. The Termination Charge is computed based on the monthly charges that would have been chargeable for the remaining term of the Contract’s initial term plus any outstanding service charges such as call charges.
“Operational Service Date” means the date when the Service is first made available for use to an End User at a Site.
Words in the singular shall include the plural and vice versa, references to any gender shall include the other and reference to legal persons shall include natural persons and vice versa.
“we”, “us” and “our” means Naked Telecom Ltd and its successors in Title and assigns from time to time.
“you” and “your” means the person with whom the Contract is made.
The headings in these conditions are intended for reference only and shall not affect their interpretation.
These conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by you to us and the provisions to these conditions shall prevail, unless expressly varied in writing and signed by a director on our behalf. Where we specifically agree terms with you in writing those terms shall prevail over any conflicting terms in these conditions.
Any concession made or latitude allowed by us to you shall not affect our strict rights under the Contract.
If in any particular case any of these conditions shall be or be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.
BASIS OF CONTRACT
The Order constitutes an offer by the Customer to purchase Products and/or Services in accordance with these Conditions.
The Order shall only be deemed to be accepted when Naked Telecom issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Naked Telecom which is not set out in the Contract.
Any samples, drawings, descriptive matter or advertising issued by Naked Telecom and any illustrations or descriptions of the Services and Products contained in catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract or have any contractual force.
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Naked Telecom has the right to accept or decline any purchase order submitted by a Customer.
OF THE CONTRACT
The Contract shall come into force on and with effect from the date of acceptance by us (“Commencement Date”) subject to the provisions of this Agreement. This Agreement will continue for a minimum of 36 months, unless and until terminated by either party hereto giving at least three months notice in writing by Recorded Delivery post to the other, expiring at the end of the original 36 month period or on any subsequent anniversary thereof. Where the Customer has given the required notice to terminate the Contract within the 36 months minimum term then the Termination Charge shall be payable at the end of the Contract.
PROVISION OF THE SERVICE
Naked Telecom will provide the End User the Service under the terms of this Contract.
Naked Telecom will provide the Service with the reasonable skill and care of a competent telecommunications service provider including determining how best to provide the Service at any Site. Naked Telecom will use reasonable efforts to provide uninterrupted Service to the End User.
From time to time faults may occur which Naked Telecom Ltd will liaise with BT or the Carrier to repair in accordance with the fault repair service.
Naked Telecom Ltd will use reasonable endeavours to provide the Service by the dates agreed with the Customer but all dates are estimates and Naked Telecom Ltd has no liability for any failure to meet those dates.
If appropriate, you authorise us, our agents, employees or other authorised personnel, to reprogram and/or install access equipment, in order to provide the Services.
Activation of Broadband Service. Before being able to activate the Service, Naked Telecom Ltd will:
(a) verify that your premises are in an area in which the Service is available; and carry out a line test
(b) Occasionally it will not be possible to establish whether the Service can be activated until after the service is installed at your premises.
(c) If the Service cannot be activated Naked Telecom Ltd will notify you as soon as possible and this Agreement will be cancelled and any charges made will be repaid to you. Naked Telecom Ltd may propose an alternative service (e.g. a lower bandwidth line). If you prefer to accept the alternative instead of cancellation you will need to confirm that within 5 calendar days.
(d) If Naked Telecom is unable to activate the Service due to your act or omission or due to incorrect information being provided by you then Naked Telecom Ltd reserves the right to charge you a failed connection fee of £150 + VAT
(e) Occasionally visits to your premises will be required. Naked Telecom or the Carrier carries out these visits. We will liaise with you to arrange the timing of these appointments. It is also possible that BT or the Carrier may contact you directly in relation to the appointment.
(f) During activation of the Service you may temporarily lose the use of your other telecommunications services. For example, and not limited to, during number porting.
(g) If you require a static IP address you will need to specify this in your Order. If you do not do not specify this requirement you will receive either a dynamic or a static IP address at our discretion.
(h) Naked Telecom at its discretion may change how the service is provided such as but not limited to a change of Carrier, line or Equipment.
EQUIPMENT SUPPLIED BY THE CARRIER OR EQUPMENT SUPPLIED BY NAKED TELECOM
The Naked Telecom or the Carrier’s Equipment remains the property of Naked Telecom Ltd or the Carrier at all times.
If Naked Telecom Ltd or the Carrier need to install Equipment at a Site to provide the Service the End User will use reasonable endeavours to procure that prior to installation:
(a) prepare the Site in accordance with Naked Telecom’s or the Carrier’s reasonable instructions, if any;
(b) make available a suitable place and conditions for the Naked Telecom Ltd or the Carrier’s equipment;
(c) provide at no charge to Naked Telecom Ltd or the Carrier sufficient electricity to power the Naked Telecom Ltd or Carrier Equipment; and
(d) agree to restore the condition of the Site including any re-decorating that may be required after installation is completed.
The End User is responsible for Naked Telecom’s or the Carrier’s Equipment and must not add to, modify, carry out any maintenance on or in any way interfere with the Equipment nor allow anyone else, (other than someone authorised by Naked Telecom Ltd or the Carrier) to do so. The End User will be liable to Us for any loss of or damage to the Equipment, except where such loss or damage is due to fair wear and tear or is caused by Naked Telecom Ltd or the Carrier, or anyone acting on Our behalf.
For any equipment supplied under the Contract by Naked Telecom Ltd:
(a) risk passes and acceptance takes place at the time of delivery;
(b) title in equipment passes to the Customer only on full payment of the charges as detailed in the Charges Schedule at which point the equipment becomes Customer Equipment, however title in any equipment
supplied without charge remains with Naked Telecom Ltd;
(c) until title passes the Customer undertakes not to sell, charge, assign, transfer or dispose of or part with possession of or encumber the equipment in any way;
(d) Naked Telecom Ltd does not guarantee the continuing availability of any equipment. Naked Telecom Ltd reserves the right to add to, substitute or to discontinue equipment.
Any equipment installed by the Customer which is attached directly or indirectly to the Services must be technically compatible with the Services.
CONNECTION OF EQUIPMENT TO THE SERVICE
Any equipment connected to or used with the Service must be connected and used in accordance with any published instructions and any safety or security procedures applicable to the use of that equipment.
Any equipment that is attached (directly or indirectly) to the Service must be approved or compliant with any relevant legislation.
The Customer will provide Naked Telecom with all reasonable information concerning the Customer’s operations and promptly provide answers to queries, decisions, and approvals that may be necessary for Naked Telecom to design, implement and provide Services. The customer is responsible for ensuring that such information and answers are accurate and complete and acknowledges that Naked Telecom shall not be liable for any delay or defect caused by or contributed to by any inaccurate or incomplete information given to Naked Telecom.
It is the Customer’s responsibility to obtain full licenses for any Software used in conjunction with Services provided.
In order that the services may be maintained remotely, the Customer may be asked to install relevant remote access software on its computer network
ACCESS AND SITE REGULATIONS
To enable Naked Telecom to carry out its obligations under this Contract, the Customer will use its reasonable endeavours to make arrangements with the site to provide Naked Telecom and or BT employees and or employees of the Carrier, and anyone acting on their behalf, who produces a valid identity card, with access to any Site and any other premises outside Naked Telecom or BT’s control, at all reasonable times. Naked Telecom Ltd or BT or the Carrier will normally only require access during Normal Working Hours but may, on reasonable notice, require the Customer to provide or make arrangements with the end user to provide access at other times. Any work carried out of hours must be agreed in advance and is subject to an additional charge.
Naked Telecom staff and anyone acting on Naked Telecom’s behalf will observe the End User’s reasonable Site regulations. In the event of any conflict between the Site regulations and these Conditions, these Conditions will prevail.
The End User will provide a suitable and safe working environment for Naked Telecom staff and anyone acting on Naked Telecom’s behalf.
If you request maintenance or repair work which is found to be unnecessary, you may be charged for the work and the costs incurred. We will give notice that work is considered unnecessary prior to completion or raising charges therefore.
USE OF THE SERVICE
The End User must not use the Service or knowingly allow or permit any member of staff to use the Naked Telecom Service:
(a) in a way that does not comply with the terms of any agreement (as appropriate) or that is in any way unlawful or fraudulent or has any unlawful or fraudulent purpose or effect; or
(b) to make offensive, indecent, menacing, nuisance or hoax Calls.
ALLOCATION AND USE OF TELEPHONE NUMBERS
In the event that the Service Provider allocates any telephone numbers to the Customer for the purpose of providing the Services the Customer acknowledges that it shall not acquire any legal, equitable or proprietorial right to any such numbers and the Service Provider shall be entitled to withdraw or change any telephone number or code or group of numbers or codes upon giving the Customer reasonable written notice.
For the avoidance or doubt, any and all intellectual property rights in any such telephone number shall at all times, as between the Service Provider and the Customer, remain vested in the Service Provider.
SUSPENSION OF SERVICE BY US
We may at our sole discretion upon giving you written notice elect to suspend forthwith provision of the Services until further notice without compensation on notifying you either orally (confirming such
notification in writing) or in writing in the event that:
(a) We are entitled to terminate this agreement or
(b) We are obliged to comply with an order, instruction or request of the UK Government, an emergency services organisation relating to the provision of telecommunications services or the establishment of networks
(c) We need to carry out any emergency works to the network or any equipment installed at your premises by us for the purpose of providing the services.
Where any suspension of the Services is implemented as a consequence of your breach, fault or omission (but not otherwise), you shall reimburse us for all costs and expenses incurred by our implementation of such suspension and/or the recommencement of the provision of the Services as appropriate as well as the Termination Charge.
If we exercise our right to suspend the services this shall not restrict our right to terminate the Contract.
Unless otherwise agreed in writing, you agree to pay for the Services by direct debit within fourteen days of the date of our invoice, such invoice to be rendered once in each calendar month during the
continuance of the Contract.
You shall pay the price for the Services as set out in our proposal. We shall be entitled to decrease our prices at any time, such decrease to apply to all Services provided after the date of the decrease and to be reflected in our next invoice. We shall be entitled to increase our charges at any time and shall give you 30 days notice of any such increase, such increase shall take effect after the expiry of such notice. Upon notification of any such increase you shall be entitled to cancel the Contract immediately by giving to us notice in writing within 30 days of the date of our notice of the increase in the charges and pay the Termination Charge.
We shall prepare and send invoices for usage charges each calendar month in arrears or in such other form and manner as shall be agreed with you. Usage charges payable shall be calculated by reference to data recorded or logged by us or our Carrier and not by reference to any data recorded or logged by you and such data shall, in the absence of manifest error be final and binding.
The time of payment shall be of the essence of the Contract.
Without prejudice to any other rights it may have, we are entitled (both before and after any judgement) to charge daily interest on amounts outstanding 14 days after the date of our invoice until payment in full is received, at a rate equal to 2 per cent per month above the National Westminster Bank plc base lending rate as current from time to time. Interest shall continue to accrue notwithstanding termination of the Contract.
All sums referred to in the Contract 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) to be charged by us and payable by you in the same manner as the usage charges.
The price for the Service shall be due in full to us in accordance with the terms of the Contract and you shall not be entitled to exercise any set-off, lien or any other similar right or claim.
For the avoidance of doubt, the Customer acknowledges that it has sole responsibility for all Charges relating to the use of the Services regardless of whether such use is authorised, unauthorised, fraudulent or otherwise. The Customer must inform Naked Telecom as soon as reasonably practicable if it suspects fraudulent or unauthorised use of the Services is occurring, although such notification will not limit the Customer’s liability to pay the charges as set out in the Schedule.
The Termination Charge shall be based on the remaining months at the point of Contract Termination of the initial Contract Term plus call charge penalties.
The time of payment of the price shall be of the essence of the Contract. If the Customer fails to make a payment on the due date then without prejudice to any other right or remedy available to it Naked Telecom shall be entitled to:-
OF THE CONTRACT
Notwithstanding any other provision of these conditions, either we or you (without prejudice to its other rights) may terminate the Contract with immediate effect by giving notice in writing to the other, in the event that:
Notwithstanding any other provision express or implied in these conditions, we (without prejudice to our other rights may terminate the Contract with immediate effect in the event that:
On termination of the Contract for any reason you must pay us any outstanding usage charges for your usage of the Services and calls up to the date of termination.
If the Contract is terminated for any reason you must pay us any early termination penalty fees (Termination Charge) for services and any outstanding call charges.
Call charges penalties will be calculated based on an average call spend for the preceding 3 months prior to notice being given. The average monthly amount will be used to calculate the early Termination Charges (monthly amount x remaining number of months on Contract term.
FORCE MAJEURE - MATTERS BEYOND REASONABLE CONTROL
Neither we nor you 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, tempest fire or accident, drought, lightning or fire strike, lock-out, trade dispute or labour disturbance, civil disturbance, terrorism, computer or network virus, any act or omission of Government, highways authorities, other public telecommunication operators or other competent authority, production or supply of service by third parties.
No liability for loss of profits, consequential losses and or loss of opportunity and or data.
shall not be liable for any costs, claims, damages or expenses
arising out of our negligence or our breach of contract or statutory
duty calculated by reference to your loss of profits or income or
productions or loss of opportunity or by reference to the accrual of
any such costs, claims, damages or expenses on a time basis.
We shall not be liable for any costs, claims, damages or expenses arising as a result of our negligence or for our 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 data.
We shall not be liable for any claims arising from end users being subject to fraudulent use of their service or from a third party succeeding in “hacking” into the Customer’s Equipment, all call costs will be paid in full by the Customer. Notwithstanding we will endeavour to notify the customer using the most expedient means available of any fraudulent activity however we can offer no guarantee or contractual obligation in relation to the detection of fraud.
The Customer may cancel the Service at any time before the Operational Service Date. If the Customer cancels the Service it must pay Naked Telecom Ltd for any work done or money spent in getting ready to provide the Service at a Site. Naked Telecom Ltd will take reasonable steps to mitigate the amount of such costs.
No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of our agents or employees shall be
construed to enlarge, vary or override in any way any of these conditions.
Naked Telecom Ltd is not liable in contract, tort (including negligence) or otherwise for indirect loss of profits, business or anticipated savings, opportunity losses, consequential losses, nor for any other indirect loss or damage or for any destruction of data.
Each provision of this Contract, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
Our aggregate liability (whether in contract or for negligence or breach of statutory duty or otherwise howsoever) to you for any loss or damage of whatsoever nature and howsoever caused shall be limited to a sum equal to one month’s billing for the Services by us to you based on the average billing for the Services by us to you over the previous 3 months or since the commencement of the Contract if the contract commenced within 3 months of the date of the claim concerned.
Naked Telecom does not provide itemised call billing to the Customer as part of the standard service. Where itemised call billing is required by the Customer, Naked Telecom at its discretion may require the installation of additional Equipment and provision of such Equipment may be subject to additional charges and/or fees.
Insofar as any part of the Services depends on or is supplied by other telecommunications operators, Naked Telecom Ltd is not responsible for their reliability or quality unless Naked Telecom Ltd is at fault.
Naked Telecom will not be liable to the Customer for any failure to comply with its obligations under this Agreement to the extent that this liability arises as a result of the failure of the Customer to fulfil its obligations under this agreement.
Where a Customer Order is fulfilled by delivery of Products by a third-party delivery service such as but not limited to Courier or Postal Service the risk of damage to or loss of Products shall pass to the Customer at the time of despatch from Naked Telecom or on behalf of Naked Telecom. Until such time as the property in Product passes to the Customer the Customer shall hold the Products as Naked Telecom’s fiduciary agent and bailee and shall keep the Products separate to those of the Customer and third parties and properly stored projected and insured and identified as Naked Telecom’s property.
The Customer must ensure that it complies at all time with all laws and obligations, including any license under the Act which is applicable to the Customer. Naked Telecom Ltd will have no liability under this Agreement for failure to comply with such obligations in any case where the Customer does not comply with any such relevant laws or obligations.
The Customer shall indemnify and keep indemnified Naked Telecom against any losses, claims, damages, costs and other liabilities which Naked Telecom may incur or be established or brought against it by reason of any claim against Naked Telecom by any third party arising out of or in connection with this Agreement or the use of the services.
The Customer indemnifies and will keep Naked Telecom fully and effectively indemnified against all and any losses, claims, damages, costs, charges, expenses or other liabilities which Naked Telecom may sustain or incur or which may be brought or established against it by any person and which in any case arise out of or in relation to or by reason of:-
In order to minimise the risk of any losses in the event that Naked Telecom is unable to provide the services due to a technical problem in relation to the telecommunications network by which the Services are provided, the customer must be aware of and follow the procedure for diverting calls over an alternative network or other such business continuity / disaster recovery plan provided to the Customer.
In the event that Naked Telecom fails to provide the services and the Customer diverts traffic to another service provider, Naked Telecom shall not be responsible for bearing the cost or expenses arising as a result of such diversion of call traffic including without limitation such service providers’ charges.
The provisions of this Clause shall continue to apply notwithstanding the termination of this agreement.
Naked Telecom does not manufacture the Products (or where the
Products comprise computer software or does not itself publish or
license the software) and Naked Telecom sells the Products with the
benefit of a manufacturer’s or publisher’s or Licensor’s
(“publisher’s”) warranty (as the case may be) Naked Telecom
cannot accept liability for defective Products.
Neither we nor you shall whilst the Contract is in force or thereafter disclose any of the other’s confidential information nor any details of the other’s commercial or technical activities or policy except insofar as is strictly necessary for fulfilling its obligations hereunder and except for any disclosure required by statue or law and save for information which is or subsequently enters the public domain.
The Customer will provide to Naked Telecom free of charge any information which Naked Telecom may require to enable it to proceed with the performance of its rights and obligations under this Agreement including any information which Naked Telecom may reasonably request for the purposes of credit verification and debt collection. The Customer permits Naked Telecom to use such information and to provide it to third parties acting on behalf of Naked Telecom for such purposes.
Neither the Customer nor Naked Telecom will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient or which is disclosed in compliance with a law or an order of the court or a competent regulatory authority.
Both parties shall comply with the data protection laws in force from time to time insofar as they relate to the Agreement and shall procure that their employees shall observe such laws.
This clause shall remain in force for two years after the termination of this Agreement
ASSIGNMENT AND SUB-CONTRACTING
We may assign the Contract with you or sub contract the whole or any part of the performance of the Services to any person, firm or company without your prior written consent.
You shall not assign or delegate or otherwise deal with all or any of its rights or obligations under the Contract without our prior written consent.
This Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter. The parties acknowledge and agree that:
the parties have not been induced to enter into this Contract by any
representation, warranty or other assurance not expressly
incorporated into it; and Conditions for Wholesale Access Service
(b) in connection with this Contract the party’s only rights and remedies in relation to any representation, warranty or other assurance are for breach of this Contract and that all other rights and remedies are excluded.
A person who is not party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
Notices given under this Contract must be in writing and may be delivered by hand, or first class post to the Naked Telecom Ltd at the address on the invoice which is sent to the Customer.
If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Contract will continue in full force and effect as if this Contract had been executed with the invalid, illegal or unenforceable provision omitted. This Contract shall be governed by the laws of England and Wales and the Customer submits to the exclusive jurisdiction of the Courts of England and Wales.