Terms and Conditions

Microcare Systems Limited Terms and Conditions for Telephone Services For Business Customers

updated 24th June,2010

1. DEFINITIONS IN THIS AGREEMENT

2. DESCRIPTON OF THE SERVICE

3. COMMENCEMENT

4. DURATION
     Minimum Period

5. PROVISION OF THE SERVICE
     Preparation of the Premises for Access and Installation of Equipment
     Faults
     Publishing of customers details

6. USE OF THE SERVICE

7. CHARGE FOR THE SERVICE

8. PAYMENT FOR THE SERVICE
     General
     Disputed Invoices

9. CHANGES TO THE CONTRACT

10. TERMINATING THE CONTRACT

11.SUSPENSION OR TERMINATION OF SERVICE FOLLOWING BREACH

12. LIMITATION OF LIABILITY

13. CONFIDENTIALITY AND USE OF CUSTOMER’S INFORMATION

14. MOVING PREMISES

15. GENERAL TERMS
     Matters Beyond Reasonable Control
     Dispute Resolution
     Customer’s Instructions
     Assignment
     Severability
     Entire Agreement Clause
     Waiver  
     Rights of Third Parties
     Notices
     Law and Jurisdiction

1.DEFINITIONS:

In these Terms and Conditions unless the context otherwise requires:

Annual Minimum Call Spend

The minimum annual sum of money that will be spent by the Customer on Call and Line Charges commencing on the Switchover Date or any anniversary thereafter during the term of the Contract

Business Customer

any customer Microcare makes this Contract with in respect of with where the Service is to be provided to a place of business for business purposes. It includes a person who Microcare reasonably believes is acting with the Customer’s authority or knowledge

Call

Means a signal, message or communication that is silent, spoken or visual on each line that Microcare agrees to provide to the Customer under this Contract

Call Charges

the sum of money, plus VAT, which to payable by the Customer per Call to Microcare

Call Level

the sum of money the Customer anticipates to spend on Call Charges during the period covered by the Customer’s invoices and is agreed by Microcare subject to acceptable credit checks

Charges

means all sums (plus VAT) payable by the Customer to Microcare in respect of the Service including but not limited to the connection charge (in respect of the Customer being connected to the Network) and any other charges for any other services provided by Microcare as identified in the Tariff Schedule

CPS

The carrier pre-selection service for the routing of calls through a carrier other than BT.

Direct Debit

Any request(s) for any payment or series of payments by bank direct debit payment method.

Microcare 

means Microcare Systems Limited (Company number 3204267) whose registered office is at Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB.

Microcare Equipment

any equipment, including any Software, owned or controlled by Microcare and placed on the Premises to provide the Service

Conditions

the Conditions for Microcare Telephone Services

Contract

Means the agreement entered into between Microcare and the customer in respect of the Service, subject to these Terms and Conditions.

Customer

means the customer who purchases the Service from Microcare and who enters into this Contract with Microcare. It includes a person who Microcare reasonably believes is acting with the Customer’s authority or knowledge

Equipment

means equipment that is not part of the Network and which the Customer uses or intends to use with the Service

Line

Means a connection to the Network

Main Telephone Socket

means the point where the Equipment is connected to the Network which is called the Network Termination Point

Minimum Period

Means the period stated in the Notification Letter, measured from the Service Start Date

Network

Means the fixed line telecommunications network operated by the Network Operator

Network Operator

means the network operator who operates a network to which the Line is connected in accordance with an agreement between the Network Operator and Microcare 

Notification Letter

the statutory transfer letter sent by Microcare to the Customer regarding the Customer’s transfer to Microcare such letter to include details of the Switchover Date

Relevant Standards

Means the standards designated under s.22 of the Telecommunications Act 1984 as amended by the Telecommunications Act 2003 and any subsequent Act or Regulation

Switchover date

The date the relevant service is available for use by the customer.

2. DESCRIPTON OF THE SERVICE

2.1 The Service is the facility via WLR3 to make or receive a Call and any related services that Microcare may agree to provide to the Customer under the Contract.

2.2. Developments in Network technology (known as Local Loop Unbundling or “LLU”) may enable Microcare to provide the Service to the Customer through Microcare’s partner Network rather than a third party Network. The Customers telephone line from the exchange to the Customers premises will continue to be maintained and repaired by BT Openreach but will be billed by Microcare.

2.3 The Service may be ordered [online on the WebPremises][or][by the Customer completing, signing and returning the Network Services Quotation and Sales Agreement (or such other form as Microcare shall require), to Microcare’s registered office at Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB.

2.4 The Order constitutes an offer by the Customer to purchase the Service from Microcare in accordance with these Terms and Conditions

2.5 Any quotation by Microcare shall not constitute an offer and is only valid for a period of [20] Working Days

2.6 On acceptance of the Customers order Microcare may transfer the Customer to our LLU network.

2.7. On the day that Microcare transfers the Customer to Microcare’s LLU network, the Customer acknowledges it may experience a short temporary loss of Service and afterwards, the Customer may also have to re-set its access numbers and/or passwords.

2.8. Microcare will seek the Customers express consent before transferring the Customer to our LLU network if the Customer takes calls and line rental service from another provider on the same telephone line at the time of transfer. The Customer agrees to give Microcare authority to act as its agent to arrange connection to Microcare’s network for both calls and lines.

2.9. The Customer acknowledges that once they have been transferred to Microcare’s partner LLU network, that:

a. they may no longer be able to use some telecommunications services that the Customer may have purchased from other telephone providers, such as indirect access services (whether using the BT 1280,Redcare or other indirect access codes,);

b. they will no longer be able to use Calls or Line Rental Services from other providers. Microcare will not be liable for any charges which may arise as a result of the termination of the Customers contracts with its existing providers for those services;

 c. if the Customer wants to switch one or more of Microcare services to another telephone provider, Microcare may have to provide the Customers remaining Service through another Network. The Customer accepts that they may have to pay additional charges for receiving Services from Microcare in that case.

2.10 If Microcare does not provide the Customers Line Rental Service over Microcare’s LLU network the Customer will need to continue paying them in order to receive that particular service.

2.11 The Customer shall:

2.11.1 ensure that the terms of the Order and any information it provides to Microcare are complete and accurate

2.11.2 co-operate with Microcare in all matters relating to the Service

2.11.3 provide Microcare with such information and materials as Microcare may reasonably require in order to supply the Service, and ensure that such information is accurate in all material respects

2.12 all the Customer’s calls will be routed through the CPS service.

3. COMMENCEMENT

3.1 The Contract begins on the date on which the Customer Order is accepted by Microcare in writing for the Service and continues until terminated by the Customer or Microcare in accordance with the Contract.

3.2 Unless otherwise stated in the Contract, the Service commences on the Service Start Date.

4. DURATION

Minimum Period

4.1 The Minimum Period is 36 months, or any other period as may be agreed in writing between the Customer and Microcare and starts from the Service Start Date.

4.2 Upon expiry of the Minimum Term, or any anniversary thereafter, this Contract will renew automatically for a further Subsequent Term unless terminated by either Party in accordance with the terms of this Agreement.

5. PROVISION OF THE SERVICE

Preparation of the Premises for Access and Installation of Equipment

5.1 The Customer agrees to prepare the Premises in accordance with any requirements Microcare may have prior to installation and to provide Microcare or any representative nominated by Microcare with all necessary access to the Premises for the purposes complying with the terms of the Contract. The Customer agrees to provide, at its expense, a suitable location and conditions for Microcare Equipment and, where required, continuous mains electricity supply and connecting points. All costs of reprogramming or removing existing access equipment will be paid for by the Customer.

5.2 The Customer is responsible for obtaining all necessary consents and permissions for Microcare to carry out any work necessary to provide the Service on the Premises including the installation of Microcare Equipment.

5.3 The Customer and Microcare agree to comply with each other’s reasonable health & safety and security requirements when on the Premises. If Microcare’s or the Network Operator’s engineers are required to enter the Premises they will show their identity cards. The Customer and Microcare agree to look after each other’s equipment on the Premises. If the Customer or Microcare damages the other’s equipment it must pay for any repair or replacement needed. This clause does not apply where the damage results from normal use.

5.4 Microcare will use its reasonable endeavours to provide the Service by the date agreed with the Customer, but all dates are estimates unless confirmed otherwise in the Notification Letter.

5.5 The Customer is responsible for making the Premises good after any work undertaken by Microcare at the Premises, including replacing and re-siting items and for re-decorating.

Faults

5.6 Microcare will use the reasonable skill and care of a competent telecommunications service provider to provide the Service, however from time to time faults may occur as other third party companies provide the Network.

5.7 If the Customer reports a fault in the Service Microcare will report the fault to the Network Operator as soon as is reasonably practicable so that the Network Operator can arrange for an engineer to be dispatched to repair the fault as soon as possible.

Publishing of customers details

5.8 Microcare will, as quickly as is reasonably possible, publish the Customer’s name address and the telephone number for the Service in the relevant phone book serving the Customers area and make the said telephone number available from a directory enquiries service unless the Customer requests Microcare not to do so within 14 days of entering into this Contract.

5.9 If the Customer requests a Special Entry to be placed in the relevant phone book issued by the Network Operator it must inform Microcare at the earliest available opportunity. Where Microcare agrees to register a Special Entry the Customer may be required to pay an additional charge and sign a separate Contract in respect of that entry.

6. USE OF THE SERVICE

6.1 Any Customer Equipment must be:

(a) technically compatible with the Service and complies with any relevant standards instructions or laws and does not harm the Network or another customer’s equipment; and

(b) connected using the applicable Main Telephone Socket that Microcare or the Network Operator have fitted unless the Parties agree otherwise.

6.2 If the Customer Equipment does not meet the Relevant Standards then the Customer must immediately disconnect it, or allow Microcare to do so at the Customer’s own expense.

6.3 If the Customer asks Microcare to test the Equipment to ensure that the Relevant Standards are met, the Customer must pay Microcare the applicable charges in respect of such testing.

6.4 The Service must not be used:

(a) in any way that is unlawful or in contravention of any instructions, licence, code of practice or guidelines issued by any regulatory authority, nor any third person’s rights; nor

(b) to make offensive, menacing, indecent, nuisance or hoax calls or to cause annoyance or inconvenience to any other person; nor

(c) to deliberately send or knowingly receive, upload, download or use any material which is deemed offensive, abusive, indecent, defamatory, or obscene under international law; nor

(d) in any way deemed to be fraudulent, nor in connection with any criminal offence.

6.5 Occasionally, Microcare may be required to:

(a) change the codes or telephone numbers given to the Customer, or the technical specification of the Service due to mandatory changes imposed on Microcare by third parties provided that any change to the way Microcare provides the Service does not significantly affect the performance or functionality of the Service; or

(b) interrupt or suspend the Service for operational or emergency reasons. Microcare  will restore the Service as quickly as possible.

(c) give the Customer instructions that Microcare believe are necessary for health or safety reasons, or to maintain the quality of the Service that Microcare supplies to the Customer or other customers

6.6 The Customer does not own any number or have any right to sell or transfer the number provided to it for use with the Service.

6.7 When ordering new telephone numbers, the Customer should not arrange for any form of advertising of the numbers until the number is live and tested.

6.8 Microcare may occasionally monitor and record calls relating to customer services made to or by Microcare . Microcare does this for training purposes and to improve the quality of its customer services. We also record all calls to the 999 or 112 emergency services.

6.9 The Customer hereby specifically authorises Microcare to send/resend CPS during the continuance of this agreement, and hereby waives Microcare’s obligation to notify it of the same being done.If the Customer wishes to receive such notification then it must so inform Microcare in writing.

6.10 The Customer will fully and effectually indemnify Microcare against any claims or legal proceedings which are brought or threatened against Microcare by a third party because the Service is used in breach of clause 6.4. If requested, Microcare will keep the Customer informed of the progress of such claims or proceedings.

7.CHARGE FOR THE SERVICE

7.1The Customer agrees to pay the Charge for the provision of the Service in accordance with Microcare’s Tariff Schedule.

7.2 Microcare’s full tariff schedule is shown (including any updates) at www.microcare-systems.co.uk

7.3 Microcare will give the Customer written notice of any changes to the Charges and the tariff schedule from time to time by e-mail or by post 1 months before the proposed date of change. If the change is not acceptable to the Customer, it will notify Microcare in writing within 21days of the date of the notice and clause

7.4 The Customer may obtain the current charge by emailing Microcare at enquiries@microcare-systems.co.uk with full account details.

8. PAYMENT FOR THE SERVICE

General

8.1 The Customer agrees to pay all of the Charges due in respect of the Service which are calculated using the details recorded by Microcare or its service carrier not by reference to any data recoded or logged by the Customer. This includes all Call Charges incurred during the use of the Service by the Customer or any third party using the Service at the Premises

8.2 Microcare will calculate the Call Charges using the details recorded at the telephone exchange. Call charges will normally be invoiced monthly in arrears. Wherever possible Call Charges will appear on the Customer’s next invoice.

8.3 Microcare will send invoices in arrears to the Customer via email (Microcare e-billing) to the e-mail address notified by the Customer to Microcare . If the Customer does not give a valid email address, the invoice will be sent to the registered address of the Customer at additional cost to the Customer

8.4 The Customer will be liable for Charges for the Service from the Service Start Date.

8.5 Unless otherwise provided in the Notification Letter, all charges are exclusive of VAT which is chargeable at the applicable rate from time to time in force.

8.6 The first invoice will be issued to the address provided by the Customer shortly after receipt of the order to include all setup charges.

8.7 Unless otherwise agreed between the Customer and Microcare , payment is due on the date specified on the invoice and the Customer must pay all charges by direct debit or by credit card. The Customer authorizes Microcare to vary the amount, frequency and time of any Direct Debit to such level as Microcare deem reasonably appropriate .Invoices paid by credit card will incur an additional charge of £5 or 3% charge of the transaction whichever is the greater.

8.8 By agreeing to the Terms and Conditions the Customer is committed to using Microcare for both Line Rental and Calls. Should the Customer use an alternative carrier for Calls once this Contract has commenced, or prevent Microcare from carrying Calls in any monthly period so that the Call Charges are significantly reduced in comparison to the Customer’s previous average invoicing profile, the Customer agrees that Microcare may charge the Customer £30 plus VAT on the Customer’s next monthly invoice and for each subsequent month during the term.

8.9 If the Customer does not pay the invoice within 14 days of the invoice a reminder will be sent to the Customer’s address for service. If payment is not received with seven days of the reminder Microcare may charge the Customer daily interest on late payments at a rate equal to 8% per annum above the base lending rate of Barclays Bank PLC for the period beginning on the date on which payment is due and ending on the date on which payment is made.

8.10 If, after commencement of the Contract, the Customer exceeds the agreed Call Level, Microcare may issue the Customer with an interim invoice. A deposit may also be sought by Microcare as security for payment of future invoices.

8.11 Line rental is Payable from the Service Start Date, Line Rental is payable quarterly in advance, unless expressly agreed in writing by Microcare . Line rental Charges vary depending upon the classification of the Customer’s line.

8.12 If the Customer orders a temporary Service, Microcare may charge the Customer for any supplementary charges incurred, plus the line rental in advance for the whole period of the temporary Service. Visit charges, and time related charges still apply as appropriate.

8.13 The Customer must pay all Charges in accordance with their direct debit authority, or in accordance with the time for payment detailed in the invoice. The Customer must pay all deposits upon demand from Microcare .

8.14 If Microcare is unable, for whatever reason, to recover the sums due under the Customer’s account within 4 days following the due date for payment, Microcare reserves the right to suspend the Service in accordance with clause 11.

8.15 On the fifth day following the due date for payment, a letter will be sent to the Customer’s address requiring the account to be discharged in full within 10 days of receipt of the letter.

8.16 If payment details are provided by the Customer to enable Microcare to collect the sums due on their account, Microcare will re-apply for payment. If the Customer’s proposed payment method is still rejected, invalid or unavailable or if the Customer’s account remains outstanding for any other reason 18 days after the original due date for payment, then:

(i) the Customer will be charged a further administration fee of £45.00 plus VAT together with an additional fee for the provision of a subsequent warning letter, and

(ii) Microcare will contact the Customer in writing requiring discharge of the Customer’s account in full within 10 working days of receipt of the letter, failing which Microcare reserve the right to refer the outstanding account to Microcares’ credit control department.

8.17 If the Customer’s account remains unpaid for a period of 18 days after the original due date for payment a security deposit of six times the average monthly invoice or payment in full for the first year will be required before Microcare will reinstate the Service.

8.18 If the Customer’s account remains unpaid for a period of 32 days after the original due date for payment, the services will then be terminated and the Customer’s account will be referred to Microcare credit control department for it to take the appropriate action to collect the outstanding sums.

8.19 If Microcare is required to instruct a debt collection agency to collect payment (including interest and late payment charges) on its behalf the Customer must pay Microcare an additional sum. This sum will not exceed the reasonable costs Microcare has to pay the agency, who will add the sum to the Customer’s outstanding debt.

8.20 The Customer is required to ensure that the name of the account holder is the same as the name on the payment details provided.

8.21 If the Customer has agreed to an Annual Minimum Call and Line Spend (as notified to the Customer by Microcare on entering into this Contract), and at the end of any given year (beginning on the Switchover Date or any anniversary thereof), the Customer has not incurred the Annual Minimum Call Spend, or if the Customer terminates this Contract in any way other than pursuant to clause 10, prior to the end of any given year (beginning on the Switchover Date or any anniversary thereof), the Customer will be liable to pay 25% of the difference between the Charges incurred during that year and the Annual Minimum Call Spend.

8.22 Microcare reserves the right to apply a monthly minimum threshold of £7.50 excluding VAT in respect of outbound calls for each invoiced account to keep the account operating at a viable level. In the event that the actual outbound calls billed amount does not reach the threshold level the Customer agrees to pay the difference between the actual calls billed amount and the threshold.

8.23 If the Customer makes a valid claim regarding excess invoice charges for any part of the Service and that such an excess is due to an error on Microcare part, the excess charge will be refunded by credit to the Customer’s account. A maximum credit equivalent to three months excess applies to this clause.

8.24 If the Customer cancels an active Direct Debit instruction once the Contract has commenced an additional administration fee of £15.00 will be added to the monthly invoice until the Direct Debit is reinstated

8.25 If any sum owed by the Customer to Microcare under the Contract or any contract with Microcare is not paid by the due date, Microcare may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with Microcare .

Disputed Invoices

8.26 If the Customer intends to dispute any charge on an invoice the Customer must do so in writing to Microcare within 14 days of the date of the invoice and provide Microcare  with all relevant information in support of the disputed charge. Where the disputed charge(s) amount to:

(a) less than 5% of the total charges listed on the invoice, the Customer will pay the full amount of the invoice; or

(b) more than 5% of the total charges listed on the invoice, the Customer must pay the remaining amount of the invoice that is not in dispute. Any disputes will be resolved promptly and the resolved amount if any is payable immediately.

8.27 The Customer remains liable for all Charges whether the Customer or someone else used the Service and whether the Service was used with the Customer’s knowledge and consent or otherwise including and not limited to calls made by rogue callers and calls made by a third party who has gained unauthorised access to the Customer’s system.

8.28 Any calls that are routed by any means beyond the control of Microcare and for which you are invoiced by another provider will remain the responsibility of the Customer.

9. CHANGES TO THE CONTRACT

9.1. Microcare can change the Contract (including the charges) at any time and will publish any change in line with clause 9.2.

9.2 Microcare will publish any changes to the Contract (including the Charges) at Hamilton House, Warth Road, Bury, Lancashire BL9 9NB and online at http://www. microcare-systems.co.uk, as follows:

(a) at least 14 days before the change is to take effect for changes that are to be made to the significant detriment of the Customer; and

(b) at least one day before the change is to take effect for all other changes.

9.3 If the Customer wishes to object to any proposed change in respect of clause 9.2 (a), the Customer must notify Microcare within 14 days of publication on the Website or receipt of the notice of the proposed increase, otherwise the Customer will be deemed to have accepted the proposed change.

9.4 The Customer may request changes to the Contract. Such requests must be made in writing and submitted to Microcare.

9.5 If Microcare agree to the changes contained in the written request a letter will be sent to the Customer confirming the agreed changes. The Contract is to be considered to be amended on the date that the letter confirming Microcare’s agreement to the changes is received by the Customer, or, in the absence of proof of receipt, the deemed date of receipt. Any such letter shall be deemed to have been received:

(a) if hand delivered or sent by prepaid recorded or special delivery post or prepaid international recorded airmail, at the time of delivery;

(b) if sent by post (other than by prepaid recorded or special delivery post) two days from the date of posting;

(c) in the case of fax or e-mail at the time of transmission.

10. TERMINATING THE CONTRACT

10.1 The Customer may cancel the Contract or any part of the Service within ten working days from the date that the Customer agrees to proceed with the contract without additional charge, other than those charges actually incurred by under clause 10.6. Thereafter, if the Customer cancels the Contract or any part of the Service any time before Microcare provides the Service the Customer will pay Microcare the early termination charges calculated in accordance with clause 10.6.

10.2 The Contract may be ended by either party upon giving the other one calendar month’s prior written notice to the other.

10.3 If the Customer or Microcare ends the Contract during the Minimum Period the Customer will pay Microcare the Early Termination Charges set out in clause 10.6. This clause will not apply if:

(a) the Customer ends the Contract during the Minimum Period because Microcare is in material breach of the Contract and fails to remedy such breach within 30 days of receiving a request from the Customer to remedy the breach; (subject to the breach being capable of being remedied by Microcare);or

(b) the Customer gives notice to end the Contract within ten working days of Microcare notifying the Customer of an increase to the charges or changes to the Terms and Conditions in either case to the Customer's significant detriment; or

 (c) a Customer as a Business Customer wishes to cancel the Contract at any time prior to the Service Start Date by giving written notice to Microcare or contacting Microcares’ customer services. Microcare will inform the Customer of the Service Start Date by issuing a Notification Letter to the Customer. For the avoidance of doubt, any costs incurred by the Customer prior to the cancellation of the Contract shall be charged to the Customer and become payable in accordance with clause 8.

(d) Microcare ends the Contract of the Service during the Minimum Period for any reason other than because of a default of the Customer

(e) the Contract ends because clause 15.1 applies

10.4 The Customer may end the Contract if:

(a) Microcare materially breaches the Contract and fails to remedy the breach within 30 days of receiving a request from the Customer to remedy the breach(subject to the breach being capable of being remedied by Microcare); or

(b) insolvency proceedings are brought against Microcare or Microcare makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of Microcares’ assets or Microcare goes into liquidation.

10.5 If the Customer terminates this Contract prior to expiry of the Minimum Period, other than in respect of termination by the Customer pursuant to clauses 10.3 and 10.4, the Customer shall pay the early termination charges, calculated in accordance with clause 10.6.

10.6 The early termination charges shall be, for each line that a Customer cancels:-

(a) the sum of the Line Rental charges payable by the Customer from the date of actual termination until the date of expiry of the Minimum Period; and

(b) any actual Call Charges accrued up to and including the date of termination; and

(c)25% of the Call Charges that would otherwise have been payable by the Customer during the Minimum Period. Such sum to be calculated by taking the average monthly Call Charges incurred during the period from the Service Start Date to the date of termination multiplied by the number of months remaining in the Minimum Period. Such sums shall be paid by way of liquidated and ascertained damages by the Customer to Microcare and such sums are accepted by the parties as being a genuine pre-estimate of the net losses likely to be suffered by Microcare in such an event and.

 (d) an administration charge of £70.00 (seventy pounds) plus VAT.

10.7 If the Customer terminates this Contract after the expiry of the Minimum Period the Customer shall pay the Charges up to the end of the notice period in accordance with clause 10.6.

10.8 If the Contract ends, Microcare will refund any money owed to the Customer, after first deducting any money the Customer owes to Microcare under this Contract or any other agreement Microcare has with the Customer.

10.9 If Customer terminates any Service prior to expiry of the Minimum Period, other than in respect of termination by the Customer pursuant to clauses 10.3 and 10.4, Microcare shall be entitled to charge the Customer an amount that would be reasonable in covering Microcare’s losses as a result of such a termination.

11. SUSPENSION OR TERMINATION OF SERVICE FOLLOWING BREACH

11.1 Microcare may suspend the Service or end the Contract, or both, at any time without notifying the Customer and without prejudice to Microcares’ other rights and remedies, if:

(a) The Customer breaches the Contract or any other contractual arrangement that the Customer has with Microcare for telephone and, if the breach is capable of remedy, fails to put right the breach within 14 days of being requested by Microcare so to do (subject to the breach being capable of being remedied by the Customer. A breach for non-payment of any valid invoice by the due date; or

(b) Microcare reasonably believes that the Service is being used in breach of clause 6.4, irrespective of the whether the Customer is aware of the breach or not; or

(c) Bankruptcy or insolvency proceedings are brought against the Customer or the Customer does not comply with a payment order of the Court or the Customer makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of the Customer’s assets or the Customer goes into liquidation; or

(d) Microcare are required to suspend the Service or terminate the Contract under any an order, instruction or request of any authorised government body or authority or emergency service; or

(e) The direct debit information provided by the Customer are found to be invalid or are subsequently cancelled; or

(f) A contract that Microcare has with a third party that assists in providing the Service is terminated.

(g) Microcare in its sole opinion suspects that the Service is being used, or is about to be used, for purposes that are fraudulent or for purposes deemed to be excessive for the type of account in operation and, if the Service is suspended, will keep the account suspended until such time as a bond, or other such payment as is agreed between the Parties, is received by Microcare.

The Customer will continue to pay the charges during any period of suspension.

11.2 If the Customer exceeds the agreed Call Level prior to submission of the next monthly invoice, Microcare will inform the Customer of the amount the Customer has spent and agree any necessary action. Microcare reserves the right to suspend outgoing Calls on the Service pending payment of charges accrued on Microcare’s invoicing system if the Customer exceeds the agreed Call Level prior to payment of the first three 3 invoices submitted in respect of the Service.

11.3 If the Customer fails to pay an invoice in accordance with clauses 8.1 and 8.7, Microcare reserves the right to:-

(a) firstly, to suspend the Service with outgoing call bars (except for emergency number access); and

(b) thereafter implement incoming call bars

11.4 Microcare will lift the suspension(s) following full payment of the outstanding amount being made by the Customer.

11.5 If the Service is suspended pursuant to clause 11 (except clauses 11.1(d) and 11.1 (f) Microcare will not recommence provision of the Service until the Customer rectifies the breach of this Contract or otherwise satisfies Microcare that the Service will not be used in a way that is in breach of this Contract.

11.6 The Customer remains liable to pay the Charges applicable to any period of suspension of the Service (other than in respect of a suspension pursuant to clause 11.1(d) and 11.1 (d)

11.7 If the Service is suspended under clause 11.1(e) above, Microcare reserves the right to charge the Customer an administration fee of £45 payable within 14 days of the suspension of the Service. This sum is in addition to any outstanding payment for invoices that may have been submitted previously.

11.8 Upon reconnection of the Service, Microcare reserves the right to charge a reconnection fee of £25 plus VAT per affected line.

12. LIMITATION OF LIABILITY

12.1 Microcare accepts liability as set out in the Contract. Microcare does not guarantee that the Service will be free from faults as other third party companies may provide the Network. Matters affecting the Network are beyond Microcares’ reasonable control and are therefore not liable for faults arising as a result of the actions of the aforementioned third parties. If the service fails to operate or the Customer diverts traffic to another carrier, Microcare will not be responsible for that carrier’s charges.

12.2. Microcare does not accept liability for the acts or omissions of other providers of telecommunications services (including but not limited to the Network Operator) unless those providers have been specifically engaged by Microcare as subcontractors or assignees in respect of performing Microcare obligations under this Contract.

12.3 Microcare does not accept liability for any charge incurred as a direct result of the Customer failing to utilise any new line within 30 days of the line being activated.

12.4 Microcare does not exclude or restrict its liability for death or personal injury caused by its own negligence or the negligence of its employees or agents acting in the course of their employment or agency or for any fraudulent misrepresentation or to any extent not permitted by law.

 12.5 Unless otherwise expressly stated in the Contract Microcare shall not be liable to the Customer in contract, tort (including negligence), breach of statutory duty or otherwise for any direct, indirect or consequential loss of profit, revenue, time, opportunity, contracts, data, use, business, any loss of or damage to reputation or goodwill, any loss of anticipated savings,wasted expenditure, loss of or damage to physical property, business interruption or for any other direct, indirect or consequential loss or punitive damages which may arise in relation to the Contract whether or not Microcare was advised in advance of the possibility of such loss or damage.

12.6 Microcare accepts liability to the Customer, as follows, subject to clauses 12.2, 12.3 and 12.5:-

(a) in respect of its failure to report a Fault to the Network Operator as soon as is reasonably practicable, where Microcare have previously been notified of such a Fault by the Customer; or

(b) for any actual loss or damage suffered by the Customer where the loss or damage suffered was reasonably foreseeable.

For the avoidance of doubt Microcare shall not be liable for any delay in the repair of the Fault except to the extent that such a delay was a direct result of Microcare failing to reporting the Fault to the relevant Network Operator as soon as was reasonably practicable.

12.7 Subject to clauses 12.2, 12.3 and 12.5 above, Microcare accept liability to the Customer in contract, tort (including negligence) breach of statutory duty or otherwise for direct loss limited to:

(a) £500.00 for each line affected;

(b) £1,000.00 per event or series of events;

(c) a maximum of £10,000.00 for loss of or damage to physical property in any period of 12 consecutive months

12.8 Microcare does not accept liability for the acts of its customers resulting in the breach of regulatory codes of practice that control the use of premium rate numbers, which include 0871, 0872, 0873 and 09 number ranges. Full code of practice details are available from PhonepayPlus, (formerly ICSTIS), the regulatory body for phone-paid services in the UK. www.phonepayplus.org.uk.

12.9 Except as set out expressly in this Contract, all conditions warranties, undertakings and obligations implied by statute, common law, custom, trade or otherwise are excluded to the fullest extent permissible in English Law.

12.10 Subject to clause 12.4, Microcare total liability to the Customer in respect of all other losses arising under or in connection with the Contract whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed £10,000.00

13. CONFIDENTIALITY AND USE OF CUSTOMER’S INFORMATION

13.1 Microcare and the Customer will keep in confidence any information, whether written or oral, of a confidential nature obtained under or in connection with the Contract except to the extent any disclosure is required by law. The Customer and Microcare will not, without the consent of the other, disclose such information to any person other than:

(a) the employees or professional advisers who shall require the information in order for the Customer or Microcare to fulfil its obligations under the Contract; or

(b) in the case of the Customer, its users of the Service to the extent that they are required to use or access the Service.

13.2 Information shall not be treated as confidential if it is:

(a) lawfully in the public domain; or

(b) lawfully in the possession of the Customer or Microcare before disclosure has taken place; or

(c) obtained from a third person who is entitled to disclose it; or

(d) replicated independently by someone without access or knowledge of the information.

13.3 If the Customer receives a request under the Freedom of Information Act 2000 which encompasses any information provided to the Customer by Microcare in connection with the Contract the Customer will notify Microcare immediately of the request and give Microcare at least 10 Working Days to make representations before releasing the requested information.

13.4 Microcare will only use Personal Data (as defined within the Data Protection Act 1998) obtained from the Customer following provision of the Service for the following purposes:- (a) administering the Customer’s account;

(b) notifying the Customer of changes to the Service;

(c) enabling Microcare to supply the Service to the Customer; and,

(d) for invoicing purposes.

13.5 Microcare will not pass Personal Data obtained from the Customer to any third parties for marketing purposes but may send the Customer information about Microcare own products and services which it considers may be of interest to the Customer, unless the Customer specifically requests in writing that Microcare does to do so.

13.6 Any request under clause 13.5, either by the Customer, the Customer’s User or by the Customer on behalf of the User should be submitted in writing to Microcare Data Controller at Hamilton House, Warth Road,, Bury, Lancashire, BL9 9NB.

13.7 In assessing applications for and making decisions about credit in respect of the Customer, Microcare may make the following searches for information pertaining to the Customer:-

(a) the files of credit reference agencies. The credit reference agency will keep a record of any search undertaken.

(b) identity and anti-fraud checks with fraud prevention agencies. If the Customer gives false or inaccurate information fraud is suspected, Microcare shall make a written note.

Details of how the Customer conducts their account may also be disclosed to those agencies.

13.8 Information obtained from the agencies referred to in clause 13.7 may be used by Microcare and other parties for

(a) checking the Customer’s identity,

(b) obtaining statistical analysis about credit, or, fraud, and

(c) to manage the Customer’s account.

13.9 Microcare may also perform subsequent searches for the purpose of risk assessment, debt collection and fraud prevention with one or more credit reference agencies and/or fraud prevention agencies whilst the Customer retains a financial obligation to Microcare.

13.10 Information held about the Customer by credit reference agencies may be linked to records relating to the Customer’s financial associate(s). The Customer declares that the Customer and the Customer’s financial associate(s) are financially independent and the Customer requests that their application for the Service be assessed without reference to any "associated" records, although the Customer recognises that this may adversely affect the outcome of the application. The Customer confirms to the best of their knowledge that there is no information relating to their financial associates that is likely to affect Microcares’ willingness to offer the Services to them.

13.11 By agreeing to the Terms and Conditions, the Customer authorises Microcare to check the validity of this declaration with credit reference agencies and if Microcare discover any associated records, which would affect the accuracy of this declaration Microcare may suspend the Service or terminate this Contract with immediate effect. For the purpose of clauses 13.10 and 13.11 a "financial associate" is someone with whom the Customer has a financial link, for example, a spouse, partner or family member.

13.12 The Customer authorises Microcare to disclose, in the UK and globally, all pertinent information about them, their use of the Service and how they conduct their account for the purposes of providing the Customer with the Service or as required for reasons of national security or under any legal duty pass such information to associated companies, partners or agents, any telecommunications company, debt collection agency, credit reference agency, fraud prevention agency or governmental agency and other users of these agencies who may use this information for the same purpose as Microcare. The Customer agrees to this information being obtained by Microcare for credit control purpose and fraud and crime detection and prevention.

13.13 Any Customer who wishes to have details of the credit reference or the fraud prevention agencies Microcare uses to obtain information about the Customer or receive a copy of the information holds about them may do so by submitting a request in writing for a copy of the information to the Data Controller at Microcare at the address detailed in clause 13.6, stating the Customers full name, address, account number and phone. (Microcare may charge a reasonable administration fee for providing such information)

14. MOVING PREMISES

14.1 If the Customer is moving the Premises, Microcare must be informed as soon as is reasonably practicable so that suitable arrangements can be made to transfer the Customer’s Line. Unless otherwise requested, Microcare, in addition to moving the line, will also endeavour to retain the Customer’s existing telephone number. If Microcare can transfer the Customer’s existing number to the new Premises the existing Contract will continue under the same Terms and Conditions. If Microcare cannot transfer the Customer’s existing number to the new Premises, installation of a new line will be required at the new Premises, or if the Customer requires any additional new Lines, this will attract new Line connection charges and a new contract for a minimum term of 36 months.

14.2 If the new installation or moving Premises involves the visit of an engineer to facilitate the new installation the Customer will be responsible for the costs incurred by Microcare (Currently £195 for the first hour and £95 per hour thereafter with a £30 charge for per half hour of travelling time plus VAT).There will be a charge for any missed appointments due to the Customer’s failure to attend (currently £195.00 plus travel charge of £30 per half hour) together with an administration fee of £45.00.

14.3 If the Customer moves Premises and leaves the installation for the new owner/tenant the Customer is required to inform them that the Service will be discontinued if Microcare are not contacted by the new owner/tenant within 72 hours for the purpose of entering into a new Contract.

14.4 If the Customer currently receives services from an alternative supplier the Customer is responsible for any contractual agreement the Customer has with them and any liabilities the Customer may incur for terminating the Customer’s current agreement.

15. GENERAL TERMS

Matters Beyond Reasonable Control

15.1 (a)If Microcare is prevented from, or is delayed in performing, any obligation under the Contract because of something beyond its reasonable control including without limitation act of God, storm, lightning, flood, exceptionally severe weather, fire, explosion, failure or shortage of power supplies, default of suppliers or subcontractors, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, war, riot, civil disorder, malicious damage, strikes, lock-outs or other industrial disputes (whether involving the workforce of Microcare or any other party) or acts or omissions of local or central government, highways, OFCOM or any other Network Provider or other competent authorities, or beyond the reasonable control of its suppliers, it will have no liability to the Customer for that failure or delay in performing.

(b) Microcare will not be liable for failure to or delay in supplying the Service if legal or regulatory restrictions are imposed that prevent Microcare from supplying the Service.

Dispute Resolution

15.2 17.2 (a) Microcare will attempt to resolve any dispute that the Customer may have with Microcare under Microcare’s Complaints Handling and Dispute Resolution Code of Practice see www.microcare-systems.co.uk. If the dispute cannot be resolved within 12 weeks of the Customer raising the dispute with Microcare, then the Customer may refer the matter to:

(i) the Telecommunications Ombudsman, via the website www.otelo.org.uk or by telephone on 0845 050 1614; or

(ii) OFCOM, the communications regulator via the website www.ofcom.org.uk or by telephone on 020 7981 3040 or 0300 123 3333.

(b) Any dispute must be submitted in writing to Microcare’s Customer Services Centre giving all relevant details including the nature and extent of the dispute.

(c) Nothing in this clause 17.2 shall prevent the Customer or Microcare from exercising any rights and remedies that may be available in respect of any breach of the provisions of the Contract.

Customer’s Instructions

15.3 Microcare may take instructions from any person whom it reasonably believes is acting with the Customer’s authorisation.

Assignment

15.4 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Microcare. Microcare may at any time assign, transfer charge, subcontract, delegate or deal in any other manner with all or any of its rights or obligations under this Contract without the consent of the Customer.

15.5 Nothing in this contract shall be deemed to grant to the Customer a licence to use any software or other intellectual property right other than strictly in accordance with the terms of this Contract. For the avoidance of doubt, the Customer shall not be entitled to sub-license any such software or intellectual property right.

Severability

15.6 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be unenforceable, invalid or illegal, the other provisions of the Contract shall not be affected. If any unenforceable, invalid or illegal provision would be enforceable, valid or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intentions of the parties.

Entire Agreement Clause

15.7 (a) The Contract and any documents referred to in it constitute the entire agreement between the Customer and Microcare and replaces all previous negotiations, representations, proposals, understanding and agreements between them whether written or oral relating to the subject matter of the Contract.

(b) Each party acknowledges and agrees that, in entering into this Contract and the documents referred to in it:

(i) it has not relied upon any statement, representation, warranty or other assurance of any person (whether a party to this Contract or not) not expressly incorporated in this Contract or those documents; and

(ii) in connection with the Contract the only rights and remedies available to it in relation to any statement, representation, warranty or other assurance are for breach of contract.

(c) Nothing in this clause shall limit or exclude any liability for fraud.

Waiver

15.8 a) A failure or delay by the Customer or Microcare to enforce any right, remedy provided under this Contract or act upon a breach under the Contract shall not be deemed to be a waiver of that right, remedy or breach or any other right, remedy or breach.

(b) If the Customer or Microcare waives a right, remedy or breach of the Contract, that waiver is limited to the particular right or breach.

(c) The single or partial exercise of any right or remedy by the Customer or Microcare does not operate as a bar to the exercise or enforcement of any right, power or remedy on any later occasion.

Rights of Third Parties

15.9 A person who is not a Party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. However, this does not affect any right or remedy of a third party that exists or is available apart from that Act.

Notices

15.10 Unless otherwise stated in the Contract, notices given under the Contract must be in writing and delivered by hand, [sent by e-mail or] sent by prepaid first class post [or] [recorded delivery or by commercial courier] to:

(a) Taryn Batten, Microcare at Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB  or such other address as may be communicated to the Customer; or

(b) the Customer at the address to which the Customer asks Microcare of Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB to send correspondence and bills.

15.11 The Customer must inform Microcare at Hamilton House, Warth Road,, Bury, Lancashire, BL9 9NB immediately if there is any change to any of the contact information previously.

Law and Jurisdiction

15.12 (a) This Contract and any disputes or claims arising out of or in connection with its subject matter shall be governed by and interpreted in accordance with English law.

(b) The Customer and Microcare irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim, which may arise out of, under, or in connection with this Contract.

Microcare Systems Ltd Terms and Conditions for Data Services For Business Customers

Dated 1^st August 2011

1. DEFINITIONS IN THIS AGREEMENT

2. DATA SERVICES PROVISIONING

3. TERM

         Minimum Period

4. CHARGES AND PAYMENTS

         General

5. SERVICE DESCRIPTIONS

Internet Access Services

Engineering Services

Managed Internet Device Services

6. INTERNET ACCESS SERVICE LEVEL AGREEMENT

7. USE OF THE SERVICE

8. CHARGE FOR THE SERVICE

9. PAYMENT FOR THE SERVICE

            Disputed Invoices

10. CHANGES TO THE CONTRACT

11. TERMINATING THE CONTRACT

12. SUSPENSION OR TERMINATION OF SERVICE FOLLOWING BREACH

13. LIMITATION OF LIABILITY

14. CONFIDENTIALITY AND USE OF CUSTOMER’S INFORMATION

15. MOVING PREMISES

16. USERNAMES AND PASSWORDS

17. GENERAL TERMS

Matters Beyond Reasonable Control
Dispute Resolution
Customer’s Instructions
Assignment
Severability
Entire Agreement Clause
Waiver  
Rights of Third Parties
Notices
Law and Jurisdiction

1. DEFINITIONS:
In these Terms and Conditions unless the context otherwise requires:

Completion means Microcare’ confirmation of successful completion of the Data Service;
Completion Date means the date upon which Completion takes place;
Customer Requirement Form means the order form supplied by Microcare;
Data Services means the Internet Access Services, the Managed Internet Device Services and the Engineering Services.
Early Termination Charge means the recurring Charges which would have been payable by the Customer for the terminated Data Service from the date of termination up to the expiry of the Committed Period;
Engineering Services means the engineering services more particularly described in section 5;
Excess Construction Charges means additional Charges applicable to an Order because resources (including equipment) are required to provide the Data Service to the Site that exceed the level of resources normally required to provide a Data Service to a Site.
Incident Ticket means the log opened and maintained notifying Microcare of an issue with a Data Service.
Internet Access Services means the internet access services more particularly described in section 5;
Managed Internet Device Services means the rental of certain equipment to the Customer as more particularly described in section 5;
Microcare means Microcare Systems Limited (Company number 3204267) whose registered office is at Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB.
Network Available means the Network is able to receive and send data packages across the Network;
Price List means the prices detailed in the Microcare tariff schedule (excluding VAT);
Resolved means the status that a helpdesk call  is changed to when Microcare believes the incident is fixed or when Microcare has not received an update from the Customer after the status has been Pending Requestor Information for three days;
Service Start Date The date the relevant service is available for use by the customer
Working Hours means 08.30 – 17.30 (UK time) on Business Days.

 

2.Data services Provisioning

2.1 The Customer shall submit Orders to the sales team of Microcare by the means of a fully completed an order.

2.2 Microcare shall action Orders in the order that they are received by Microcare and shall use reasonable endeavours to accept an Order within one Business Day of receipt.

2.3 For some services, Excess Construction Charges (ECCs) may be payable by the Customer to complete delivery of a Data Service.  If applicable, Excess Construction Charges shall be identified during the Site survey.  If Excess Construction Charges are identified, they must be accepted by the Customer before work on the Order can continue.  The Customer may elect to not accept the Excess Construction Charges and the Order shall be cancelled.  If the Customer does not accept the Excess Construction Charges within 25 Business Days of notification by Microcare, the Excess Construction Charges shall be deemed rejected and the Order cancelled.  Microcare shall notify the Customer before such cancellation.

2.4 Excess Construction Charges are indicative and are subject to change once the external works commence. Any changes to ECCs shall be communicated to the Customer via Microcare and would be subject to section 2.3 above.

2.5 The period from the point of ECC identification to the completion of the external works is outside the standard lead time.

2.6 The planning stage ends after the Site surveys and any ECCs have been completed. Upon completion of the planning stage, Microcare shall notify the Customer of the estimated Completion Date.

2.7 Microcare shall inform the Customer by email when the Data Service has successfully been installed.

 

TERM

3. Minimum Period

3.1 The Minimum Period is 36 months, and starts from the Service Start Date.

3.2 Upon expiry of the Minimum Term, or any anniversary thereafter, this Contract will renew automatically for a further subsequent term of 36 months ("Subsequent Term") unless terminated by either Party giving no less than 90 days notice, such notice to expire before the end of the Minimum Term.
3.3 A Party may give the other Party not less than ninety (90) days’ written notice to terminate this Service Schedule.

3.4 Each Order shall become effective on the service start date and shall continue for the minimum period, which shall be 36 months from the service start date unless otherwise agreed in writing by Microcare, or until the Order is terminated in accordance with the terms set out in this Service Schedule.

3.5 A Party may give the other Party not less than 10 days’ written notice to terminate an Order. In the event that the Customer cancels an Order before the end of the minimum period, the Customer shall be liable to for Early Termination Charges.

4. Charges and Payments

4.1 Microcare’s standard Charges for the Data Services are set out in the tariff schedule which can be provided on request. The Charges relating to each specific Data Service are set out in the quotation for the Order.  Microcare may change the Charges in accordance with the provisions of the data service.

4.2 Microcare shall provide an invoice to the Customer. Microcare shall deliver this via email.

5. Service descriptions

Internet Access Services

5.1 The Internet Access Services provide all or most of the physical and logical infrastructure to give the Customer the ability to transmit Internet Protocol (IP) traffic between a single UK Site and the global internet infrastructure and include all ADSL, SDSL, Leased Line, EFM and Ethernet Products.

5.2 One or two Internet Access Services are usually provided from a Site to the Microcare Network.

5.3 The CPE, which can be used in conjunction with the Internet Access Services, is listed in the Internet Access Service Definition.

5.4 The lease of RIPE-allocated IP addresses associated with the connectivity system to enable internet access are included in an Internet Access Service. The number of IP addresses and whether they are static or dynamic depends on the Internet Access Service selected.

Engineering Services

5.5 Non Project Deployment Services:

pre-configuration and shipping, which includes parts of or all of the following according to the Customer requirements:

• device pre-configuration soak test;
• shipment to a UK Site;
• IP routing;
• firewall; and
• VPN.

on-site installation, which includes:

• device pre-configuration;
• soak test;
• installation to a UK Site;
• readiness testing; and
• sign-off.

5.6 LAN infrastructure audit.

5.7 LAN device hardware maintenance.

5.8 Onsite and off-site professional services:

technical services, which fall into three categories:

• general;
• documentation; and
• 3rd party liaison;

engineering services, which fall into four categories:

• moderate;
• device configuration;
• upgrades; and
• audits; and

consultancy services, which fall into four categories:

• complex;
• security;
• prototyping; and
• troubleshooting.

Managed Internet Device Services

5.9 The Managed Internet Device Services comprises of rented hardware for a combined annual service charge.

5.10 The selection of hardware available as part of the Managed Internet Device Services is detailed in the tariff schedule.  The hardware remains the property of Microcare.

5.11 The Customer can elect to purchase additional Engineering Services if it requires Microcare to install the hardware.

6. INTERNET ACCESS SERVICE LEVEL AGREEMENT This schedule sets out the Service Level Agreement for the Internet Access Services.

Microcare Service Operating Hours

6.1 Microcare’s service levels and telephone helpdesk operates during Working Hours, except as provided in Paragraph 6.1.1 below.

6.1.1 Where the Internet Access Service is a Premium, Express or Enhanced Internet Access Service (as defined in the Internet Access Service Definition); Microcare shall manage severity level 1 incidents and severity level 2 incidents 7 days per week 08:30am to 05:30pm.

Responsibilities

6.2 Microcare is responsible for:

provision of a helpdesk for call handling; and

incident resolution and escalation.

6.2.1 In addition for fixed line services, Microcare shall be responsible for:

proactive monitoring of access availability;

outage alerts by email; and

utilisation statistics of access circuits.

6.2.2 The Customer is responsible for:

notifying Microcare of any changes to Site and contact details;

basic troubleshooting;

reporting incidents with the Internet Access Service; and access to sites for incident resolution

Microcare Network Characteristics

6.3 Microcare Network metrics do not include the Internet Access Service or any off-net service.

Internet Access Platform Metric	Target
Microcare Network availability	99.99%
Microcare Network packet loss	< 0.1%

6.3.1 Microcare Network availability is measured annually using the following formula:

(A-B)x100

C

Where:

A = number of minutes that Microcare Network is classed as Network Available

B = actual downtime excluding any downtime attributable to any of the causes set out in Paragraph 6.3.3 below.

C = number of minutes where Microcare Network could be Network Available.

6.3.2 Microcare Network packet loss is measured annually using the following formula:

x100

D + E

Where:

D = Number of lost packets over Microcare Network

E = Number of packets received successfully

6.3.3 Internet Access Platform metrics shall not include any failure attributable to

scheduled network maintenance; and

Force Majeure Events.

6.3.4 As Service Credits are claimed on a per incident basis, the above metrics are for network planning and account review purposes only.

Incident Severity

6.4 Incident severity is classified as follows:

Level	Class	Description
1	Emergency	Total loss of service (e.g. total circuit or equipment failure)
2	Major	Significant degradation or intermittent service (e.g. significant packet loss, significant degradation in throughput or loss of a particular component service)
3	Minor	Minor degradation of service (e.g. small or intermittent packet loss, reduction in throughput)
4	Change request	Non urgent change request (e.g. modification to configurations of equipment)

6.4.1 Microcare shall initially determine the incident severity and log an Incident Ticket.  Microcare may change the severity level during repairs. For example, if a severity level 1 incident is temporarily repaired, then the incident may be reduced to severity level 2.  The new classification shall determine the course of actions thereafter.

6.4.2 Once Microcare believes that the Customer’s incident is fixed, or if Microcare has requested vital information from the Customer and the Customer has not responded within three days the incident Ticket status become Resolved.

Fault Reporting

6.5 Incidents may be reported by telephone to Microcare on 0800 515 513.

6.5.1 The Customer shall need to provide the following:

1. company name and contact name;
2. contact telephone number;
3. Site address where the incident is;
4. circuit number;
5. description of the incident;
6. what happened prior to the incident; and
7. how the incident been diagnosed.

6.5.2 The primary method of reporting severity level 1 incidents and severity level 2 incidents to Microcare should be by telephone. Incidents reported by email may not be allocated to a support engineer in an appropriate timescale to provide the desired level of response.

Level	By telephone	Email
1	1 hour	Inappropriate (4 hours)
2	2 hours	Inappropriate (4 hours)
3	6 hours	6 hours
4	48 hours	48 hours

6.5.3 For severity level 3 incidents and severity level 4 incidents, or as an alternative to calling, the Customer may email servicedesk@microcare-systems.co.uk.

6.5.4 The response time clock starts when a helpdesk call is created on the Microcare system via the mechanisms above.

6.5.5 Subject to Paragraph 6.1.1 above, should an incident be raised outside the Working Hours, the measurement of the response time shall not start until Working Hours recommence.

Target Fix Times

6.6 Target restoration times depend on the access technology employed at each Site.

6.6.1 Premium Internet Access Services Internet Access Services in the premium category are defined in the Internet Access Service Definition.

Level	Service Restoration
1	6 hours
2	10 hours
3	Next day
4	N/A

6.6.2 Express Internet Access services in the express category are defined in the Internet Access Service Definition.

Level	Service Restoration
1	7 hours
2	Next day
3	Three days
4	N/A

6.6.3 Enhanced Internet Access services in the enhanced category are defined in the Internet Access Service Definition

Level	Service Restoration
1	Next day
2	Three days
3	No guarantee
4	N/A

6.6.4 Standard Internet Access services in the standard category are defined in the Internet Access Service Definition

Level	Service Restoration
1	Three days
2	Five days
3	No guarantee
4	N/A

Service Restoration Clock

6.6.5 The service restoration clock starts when a helpdesk call has been allocated, the Customer contacted, a severity level assigned and the initial diagnosis work has been completed.

Helpdesk calls may be left open, post service restoration, for monitoring purposes. Thus the clock stops when the helpdesk call is closed or when a member of the Microcare Technical Support Centre (TSC) informs the Customer of service restoration, whichever is sooner.

Subject to paragraph 2.2 above, should an incident be raised outside the Working Hours, the measurement of the service restoration time shall not start until Working Hours recommence.

Multiple Short Service Failures

6.6.6 If the same circuit experiences multiple failures within the same month, Microcare shall consider this a single outage event for the purposes of service restoration and Service Credits. The service restoration clock shall be restarted from the point the subsequent failure has been diagnosed.

Outages and Maintenance

6.7 Network maintenance shall normally be performed outside of service level operating hours.

6.7.1 Should maintenance be service affecting, the affected Customer shall be notified with three Business Days’ notice via the nominated email contact detailing the work to be carried out and any effect on the Internet Access Service.

6.7.2 All network maintenance on the Microcare Network is also published on our website.

6.7.3 Under exceptional circumstances it may be necessary to perform emergency engineering work without prior notice. In that event, Microcare shall use its best efforts to limit any resultant adverse effects on the Customer’s service.

Emergency and Major Fault Escalation

6.8 General

• Escalation means that more senior support staff shall be made aware of the Customer’s incident and provide additional assurance to the Customer.
• For continuity, the Customer’s point of contact with the Microcare Technical Support Centre (TSC) remains the same throughout the repair.
• Microcare shall automatically escalate severity level 1 incidents and severity level 2 incidents using the procedure below. Escalation automatically starts once 75% of the service restoration target time has passed.

6.9 Time Before Escalation Starts

Level	Premium	Express	Enhanced	Standard
Time	4hrs	6hrs	24 hrs	48 hrs

Incidents are further escalated, one tier at a time, after a certain number of elapsed Working Hours with no resolution. The interval between each escalation event depends on the severity of the incident and the access technology employed at the Site according to the following table.

6.10 Interval Between Further Escalation Events

Level	Premium	Express	Enhanced	Standard
1	1 hr	2hrs	4 hrs	8 hrs
2	2 hr	4hrs	8 hrs	10 hrs
3	N/A	N/A	N/A	N/A
4	N/A	N/A	N/A	N/A

6.11 Escalation Path

Tier	Job role
1	Helpdesk Engineer
2	Engineering Supervisor
3	Operations Manager
4	Network Services Manager
5	Managing Director

The above escalation is also used if, at any point, the Customer feels that the problem is not being addressed in a satisfactory manner.

6.12 Management Escalation Path

When target quality parameters are not met, or when a Customer is dissatisfied, they can use the following management escalation path.

Tier	Job role
1	Sales Team Leader
2	Sales Manager
3	Managing Director

Callout Charge for Non Microcare Business Incidents

6.13 Fault resolution sometimes means an engineer has to visit the Site. If, while the engineer is onsite, the incident is discovered not to be a hardware or circuit failure under Microcare’ control (e.g. the managed device has been unplugged, or there is a incident with Customer’s equipment or facilities), Microcare reserves the right to charge the Customer a callout fee of £250 together with a £30 per half hour travel charge to the premises plus, if required, a £95 charge for each subsequent hour at the premises.

Making A Claim

6.14 A claim should be made in any month where there are one or more incidences where the agreed service restoration target was not met.

6.15 A claim should be made in writing to your Account Manager. The deadline for making a claim is 1 Business

Day after the end of the month for which credit is requested.

Service Credits

6.16 If, in the event the network agrees in their reasonable opinion, the target time for service restoration for an incident is exceeded the SLA, the Customer shall be entitled to a Service Credit for the failure according to the following schedule:

Service restored	Service credit
Within 2 Business Day of the service restoration target.	12.5% of the total monthly recurring Charges due for the relevant Internet Access Service
More than one Business Day beyond the service restoration target.	25% of the total monthly recurring Charges due for the relevant Internet Access Service

6.16.1 Total Service Credits per month are limited to 50% of the total monthly recurring Charges due for the relevant Internet Access Service and any associated NetAssure Service.

6.16.2 The Customer has notified Microcare in writing within 30 Business Days after the end of the month for which the Service Credit is requested.

6.16.3 Service Credits shall be applied as a credit to the Customer’s account and, as such, shall be deducted from the value of the next invoice.

6.16.4 Service Credits shall not be granted if there is any amount owing by the Customer to Microcare under this Service Schedule or otherwise and such amount is overdue.

 

7. USE OF THE SERVICE

7.1 The Customer agrees that the Service is provided solely for their use and agrees not resell or attempt to resell the Service (or any part of it) to any third party. If the Customer has a mail server, the Customer agrees not to allow relay emails from outside the Customer’s domain from its mail server.

7.2 Microcare does not warrant or guarantee the accuracy or completeness of any of the information, sound, software and any other materials (in whatever form) and services made available to the Customer as part of the Service (the “Content”) or any further information or results which may be derived from it. The Customer acknowledges that it will not rely on any Content in making any business or other decision and that the Customer’s use of the Content is at their sole risk.

7.3 The Customer acknowledges that there may be additional conditions (either Microcare’s or those of a third party) displayed online relating to particular Content. These conditions will also form part of this Contract should the Customer access such Content.

7.4 The Customer agrees that it is entirely responsible for evaluating any goods or services offered by third parties via the Service or on the internet. Microcare will not be a party to or in any way be held responsible to the Customer for any transaction between the Customer and third parties.

7.5 The Customer warrants that any information it makes available on its website, both about itself (“Customer Information”) or that of a third party (“Third Party Content”) is and will remain wholly accurate and will not include any information or material, any part of which, or the accessing of which or use of which, would be a criminal offence or is otherwise unlawful.

7.6 The Customer also warrants that it will comply with all consumer and other legislation, instructions or guidelines issued by regulatory authorities and relevant licences which relate to the provision of the information on its website including those notified by Microcare to the Customer.

7.7 The Customer agrees not to use the Service, including associated computer security or backup services and software:

7.7.1 in any way that breaches any legislation or any licence applicable to Microcare or that is in any way unlawful or fraudulent; or

7.7.2 to deliver, knowingly receive, upload, download, use or re-use any information or material which is abusive, defamatory, obscene or menacing, or in breach of any copyright, privacy or any other rights; or

7.7.3 to send or procure the sending of any chain letters or unsolicited advertising or promotional material (“spamming”); or

7.7.4 in a way that does not comply with Microcare’s specific instructions.

7.7.5 to propagate computer worms or viruses

7.7.6 to attempt to gain unauthorised entry to any site or network

7.7.7 to distribute child pornography, obscene or defamatory material

7.8 The Customer agrees to fully indemnify Microcare against all losses, damages, amounts paid by way of settlement, costs and expenses (including legal fees) of whatsoever nature suffered or incurred by Microcare arising out of or in connection with any actual or potential claims or legal proceedings against Microcare by a third party because of the Customer’s use of the Service in breach of the provisions of this Clause 7. Microcare shall notify the Customer of any such claims or proceedings and inform the Customer regularly as to the progress of such claims or proceedings.

7.9 The Customer acknowledges that the Service is provided to other users and that Microcare owes a duty to these users as a whole to preserve Microcare’s network integrity and avoid network degradation. If, in Microcare’s reasonable opinion, the Customer’s use of the Service has or may adversely affect such network integrity or may cause network degradation Microcare may manage the Customer’s transmission speed, the type of traffic the Customer is passing, and/or suspend the Service.

7.10 Microcare operates an Acceptable Use Policy to protect the quality of service to its customers. If Microcare believes that the Customer’s use of the Service is adversely affecting our network (or any part of it) or our other customers’ use of its services or if the Customer’s usage is significantly different from what Microcare would expect from a business customer, Microcare reserves the right to manage or regulate the Customer’s usage in accordance with the Acceptable Use Policy. Microcare will not impose any restrictions on the Customer or impose an additional charge without prior notice. If, after Microcare has sent the Customer notice, Microcare believes that the Customer’s use of the Service continues to adversely affect Microcare’s network (or any part of it) or Microcare’s other customers’ use of Microcare’s services or if the Customer’s usage continues to be significantly different from what Microcare would expect from a business customer then Microcare may:

7.10.1 Restrict the download and upload speeds;

7.10.2 Apply additional charges for additional high bandwidth usage;

7.10.3 Suspend the service; and

7.10.4 Cease the service.

7.11 Microcare may require the Customer to reimburse Microcare for any reasonable and foreseeable losses, costs and expenses which Microcare incurs as a direct result of the misuse of the Service either by the Customer or by someone the Customer has knowingly allowed to use the Service Microcare provides to the Customer.

7.12. Microcare may change the Acceptable Use Policy at any time by publishing the changes on the Website14 days before the change is to take effect.

 

8. CHARGE FOR THE SERVICE

8.1 The Customer agrees to pay the Charges for the provision of the Service in accordance with Microcare’s Tariff Schedule.

8.2 Microcare’s full tariff schedule is available upon request,

8.3 Microcare will give the Customer written notice of any changes to the Charges and the tariff schedule, if prices are to vary at the end of the minimum period.

 

9. PAYMENT FOR THE SERVICE

General

9.1 The Customer agrees to pay all of the Charges due in respect of the Service which are calculated using the details recorded by Microcare or its service carrier not by reference to any data recorded or logged by the Customer.

9.2 Microcare will calculate the Charges using the details recorded at the telephone exchange. All charges will normally be invoiced monthly in advance.

9.3 Microcare will send invoices in advance to the Customer via email (Microcare e-billing) to the e-mail address notified by the Customer to Microcare. If the Customer does not give a valid email address, the invoice will be sent to the registered address of the Customer at additional cost to the Customer

9.4 The Customer will be liable for the Charges for the Service from the Service Start Date.

9.5 Unless otherwise provided in the Notification Letter, all charges are exclusive of VAT which is chargeable at the applicable rate from time to time in force.

9.6 Unless otherwise agreed between the Customer and Microcare, payment is due on the date specified on the invoice and the Customer must pay all charges by direct debit or by credit card. The Customer authorizes Microcare to vary the amount, frequency and time of any Direct Debit to such level as Microcare deem reasonably appropriate. Invoices paid by credit card will incur an additional charge of £5 or 3% charge of the transaction whichever is the greater.

9.7 If the Customer does not pay the invoice within 14 days of the invoice an administration fee of £45 will be charged and Microcare may charge the Customer daily interest on late payments at a rate equal to 8% per annum above the base lending rate of Barclays Bank PLC for the period beginning on the date on which payment is due and ending on the date on which payment is made.

9.8 The Charges are payable from the Service Start Date, monthly in advance.

9.9 If the Customer orders a temporary Service, Microcare may charge the Customer for any supplementary charges incurred, plus the line rental in advance for the whole period of the temporary Service. Visit charges and, time related charges still apply as appropriate.

9.10 The Customer must pay all Charges in accordance with their direct debit authority, or in accordance with the time for payment detailed in the invoice. The Customer must pay all deposits upon demand from Microcare.

9.11 If Microcare is unable, for whatever reason, to recover the sums due under the Customer’s account within 4 days following the due date for payment, Microcare reserves the right to suspend the Service in accordance with clause 9.

9.12 On the fifth day following the due date for payment, a letter will be sent to the Customer’s address requiring the account to be discharged in full within 10 days of receipt of the letter.

9.13 If payment details are provided by the Customer to enable Microcare to collect the sums due on their account, Microcare will re-apply for payment and charge an administration fee of £45 plus VAT. If the Customer’s proposed payment method is still rejected, invalid or unavailable or if the Customer’s account remains outstanding for any other reason 18 days after the original due date for payment, then:

(i) the Customer will be charged a further administration fee of £45.00 plus VAT together with an additional fee for the provision of a subsequent warning letter, and

(ii) Microcare will contact the Customer in writing requiring discharge of the Customer’s account in full within 7 days of receipt of the letter, failing which Microcare reserve the right to refer the outstanding account to Microcare’s credit control department.

9.14 If the Customer’s account remains unpaid for a period of 25 days after the original due date for payment a security deposit of six times the average monthly invoice or payment in full for the first year will be required before Microcare will reinstate the Service.

9.15 If the Customer’s account remains unpaid for a period of 32 days after the original due date for payment, the Service will then be terminated and the Customer’s account will be referred to Microcare’s credit control department for it to take the appropriate action to collect the outstanding sums.

9.16 If Microcare is required to instruct a debt collection agency to collect payment (including interest and late payment charges) on its behalf the Customer must pay Microcare an additional sum. This sum will not exceed the reasonable costs Microcare has to pay the agency, who will add the sum to the Customer’s outstanding debt.

9.17 The Customer is required to ensure that the name of the account holder is the same as the name on the payment details provided.

9.18 If the Customer makes a valid claim regarding excess invoice charges for any part of the Service and that such an excess is due to an error on Microcare’s part, the excess charge will be refunded by credit to the Customer’s account. A maximum credit equivalent to three months excess applies to this clause.

9.19 If the Customer cancels an active Direct Debit instruction once the Contract has commenced an additional administration fee of £15.00 will be added to the monthly invoice until the Direct Debit is reinstated

9.20 If any sum owed by the Customer to Microcare under the Contract or any contract with Microcare is not paid by the due date, Microcare may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with Microcare.

Disputed Invoices

9.22 If the Customer intends to dispute any charge on an invoice the Customer must do so in writing to Microcare within 14 days of the date of the invoice and provide Microcare with all relevant information in support of the disputed charge. Where the disputed charge(s) amount to:

(a) less than 5% of the total charges listed on the invoice, the Customer will pay the full amount of the invoice; or

(b) more than 5% of the total charges listed on the invoice, the Customer must pay the remaining amount of the invoice that is not in dispute. Any disputes will be resolved promptly and the resolved amount if any is payable immediately.

9.23 The Customer remains liable for all Charges whether the Customer or someone else used the Service and whether the Service was used with the Customer’s knowledge and consent or otherwise including and not limited to usage made by a third party who has gained unauthorized access to the Customer’s system.

 

10. CHANGES TO THE CONTRACT

10.1. Microcare can change the Contract (including the charges) at any time and will publish any change in line with clause 10.2.

10.2 Microcare will publish any changes to the Contract (including the Charges) at Hamilton House, Warth Road, Bury, Lancashire and on the Website, as follows:

(a) at least 14 days before the change is to take effect for changes that are to be made to the significant detriment of the Customer; and

(b) at least one day before the change is to take effect for all other changes.

10.3 If the Customer wishes to object to any proposed change in respect of clause 10.2 (a), the Customer must notify Microcare within 14 days of publication on the Website or receipt of the notice of the proposed increase, otherwise the Customer will be deemed to have accepted the proposed change.

10.4 The Customer may request changes to the Contract. Such requests must be made in writing and submitted to Microcare.

10.5 If Microcare agrees to the changes contained in the written request a letter will be sent to the Customer confirming the agreed changes. The Contract is to be considered to be amended on the date that the letter confirming Microcare’s agreement to the changes is received by the Customer, or, in the absence of proof of receipt, the deemed date of receipt. Any such letter shall be deemed to have been received in accordance with clause 17.10

 

11. TERMINATING THE CONTRACT

11.1 The Customer may cancel the Contract or any part of the Service within ten Working Days from the date that the Customer agrees to proceed with the contract without additional charge, other than those charges actually incurred by under clause 11.6. Thereafter, if the Customer cancels the Contract or any part of the Service any time before Microcare provides the Service the Customer will pay Microcare the Early Termination Charges calculated in accordance with clause 11.6.

11.2 The Contract may be ended by either party upon giving the other one calendar month’s prior written notice to the other.

11.3 If the Customer or Microcare ends the Contract during the Minimum Period the Customer will pay Microcare the early termination charges set out in clause 11.6. This clause will not apply if:

(a) the Customer ends the Contract during the Minimum Period because Microcare is in material breach of the Contract and fails to remedy such breach within 30 days of receiving a request from the Customer to remedy the breach (subject to the breach being capable of being remedied by Microcare); or

(b) the Customer gives notice to end the Contract within 14 days of Microcare notifying the Customer of an increase to the charges or changes to the Terms and Conditions in either case to the Customer's significant detriment; or

(c) a Customer, as a Business Customer, wishes to cancel the Contract at any time prior to the Service Start Date by giving written notice to Microcare or contacting Microcare’s Customer Services. Microcare will inform the Customer of the Service Start Date by issuing a Notification Letter to the Customer. For the avoidance of doubt, any costs incurred by the Customer prior to the cancellation of the Contract shall be charged to the Customer and become payable in accordance with clause 11.6.

(d) Microcare ends the Contract of the Service during the Minimum Period for any reason other than because of a default of the Customer

(e) the Contract ends because clause 17.1 applies

11.4 The Customer may end the Contract if:

(a) Microcare materially breaches the Contract and fails to remedy the breach within 30 days of receiving a request from the Customer to remedy the breach (subject to the breach being capable of being remedied by Microcare); or

(b) insolvency proceedings are brought against Microcare or Microcare makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of Microcare’s assets or Microcare goes into liquidation.

11.5 If the Customer terminates this Contract prior to expiry of the Minimum Period, other than in respect of termination by the Customer pursuant to clauses 11.3 and 11.4, the Customer shall pay the early termination charges, calculated in accordance with clause 11.6.

11.6 The early termination charges shall be, for each data connection that a Customer cancels:-

(a) the sum of the data monthly charges payable by the Customer from the date of actual termination until the date of expiry of the Minimum Period; and

(b) any actual overage Charges accrued up to and including the date of termination; and

(c) an administration charge of £70.00 (seventy pounds) plus VAT.

11.7 If the Customer terminates this Contract during the Subsequent Term the provisions of clauses 10.2 to 10.6 shall apply with the phrase "Subsequent Term" replacing the phrase "Minimum Period".

11.8 If the Contract ends, Microcare will refund any money owed to the Customer, after first deducting any money the Customer owes to Microcare under this Contract or any other agreement Microcare has with the Customer.

11.9 If Customer terminates any Service prior to expiry of the Minimum Period, other than in respect of termination by the Customer pursuant to clauses 11.3 and 11.4, Microcare shall be entitled to charge the Customer an amount that would be reasonable in covering Microcare’s losses as a result of such a termination.

 

12. SUSPENSION OR TERMINATION OF SERVICE FOLLOWING BREACH

12.1 Microcare may suspend the Service or end the Contract, or both, at any time without notifying the Customer and without prejudice to Microcare’s other rights and remedies, if:

(a) The Customer breaches the Contract or any other contractual arrangement that the Customer has with Microcare  and, if the breach is capable of remedy, fails to put right the breach within 14 days of being requested by Microcare so to do (subject to the breach being capable of being remedied by the Customer. A breach in this clause includes non-payment of any valid invoice by the due date; or

(b) Microcare reasonably believes that the Service is being used in breach of clause 7.7, irrespective of the whether the Customer is aware of the breach or not; or

(c) Bankruptcy or insolvency proceedings are brought against the Customer or the Customer does not comply with a payment order of the Court or the Customer makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of the Customer’s assets or the Customer goes into liquidation; or

(d) Microcare are required to suspend the Service or terminate the Contract under any an order, instruction or request of any authorised government body or authority or emergency service; or

(e) The direct debit information provided by the Customer are found to be invalid or are subsequently cancelled; or

(f) A contract that Microcare has with a third party, which insists in providing the Service, is terminated.

(g) Microcare in its sole opinion suspects that the Service is being used, or is about to be used, for purposes that are fraudulent or for purposes deemed to be excessive for the type of account in operation and, if the Service is suspended, will keep the account suspended until such time as a bond, or other such payment as is agreed between the Parties, is received by Microcare.

The Customer will continue to pay the charges during any period of suspension.

12.2 If the Customer fails to pay an invoice in accordance with clauses 9.1 and 9.7, Microcare reserves the right to suspend the Service.

12.3 Microcare will lift the suspension(s) following full payment of the outstanding amount being made by the Customer.

12.4 If the Service is suspended pursuant to clause 12 (except clauses 12.1(d) and 12.1(f)), Microcare will not recommence provision of the Service until the Customer rectifies the breach of this Contract or otherwise satisfies Microcare that the Service will not be used in a way that is in breach of this Contract.

12.5 The Customer remains liable to pay the Charges applicable to any period of suspension of the Service (other than in respect of a suspension pursuant to clauses 12.1(d) and 12.1(f))

12.6 If the Service is suspended under clause 12.1(e) above, Microcare reserves the right to charge the Customer an administration fee of £45 payable within 14 days of the suspension of the Service. This sum is in addition to any outstanding payment for invoices that may have been submitted previously.

12.7 Upon reconnection of the Service, Microcare reserves the right to charge a reconnection fee of £70 plus VAT per broadband connection affected (other than pursuant to suspension pursuant to clauses 12.1(d) and 12.1(f)).

12.8 Microcare shall use its reasonable endeavours following suspension of Services to resume access to the Service for the Customer within a reasonable time. The Customer acknowledges that the period of time to enable Services to be resumed is dependant upon the manner of suspension employed by Microcare and, as a minimum, periods for resumption of the Service would be as follows:

12.8.1 site-barring or reactivation of username/password-8 hours

12.8.2 user accounts temporarily out of service-48 hours

12.8.3 disconnected user accounts- 14 days

 

13. LIMITATION OF LIABILITY

13.1 Microcare accepts liability as set out in the Contract. Microcare does not guarantee that the Service will be free from Faults as other third party companies may provide the Network. Matters affecting the Network are beyond Microcare’s reasonable control and are therefore not liable for Faults arising as a result of the actions of the aforementioned third parties. If the service fails to operate or the Customer diverts traffic to another carrier, Microcare will have no liability and will not be responsible for that carrier’s charges.

13.2. Microcare does not accept liability for the acts or omissions of other providers of telecommunications services (including but not limited to the Network Operator) unless those providers have been specifically engaged by Microcare as subcontractors or assignees in respect of performing Microcare obligations under this Contract.

13.3 Microcare does not accept liability for any charge incurred as a direct result of the Customer failing to utilise any new line within 30 days of the line being activated.

13.4 Microcare does not exclude or restrict its liability for death or personal injury caused by its own negligence or the negligence of its employees or agents acting in the course of their employment or agency or for any fraudulent misrepresentation or to any extent not permitted by law.

13.5 Unless otherwise expressly stated in the Contract Microcare shall not be liable to the Customer in contract, tort (including negligence), breach of statutory duty or otherwise for any direct, indirect or consequential loss of profit, revenue, time, opportunity, contracts, data, use, business, any loss of or damage to reputation or goodwill, any loss of anticipated savings, wasted expenditure, loss of or damage to physical property, business interruption or for any other direct, indirect or consequential loss or punitive damages which may arise in relation to the Contract whether or not Microcare was advised in advance of the possibility of such loss or damage.

13.6 Microcare accepts liability to the Customer, as follows, subject to clauses 13.2, 13.3 and 13.5:-

(a) in respect of its failure to report a Fault to the Network Operator as soon as is reasonably practicable, where Microcare have previously been notified of such a Fault by the Customer; or

(b) for any actual loss or damage suffered by the Customer where the loss or damage suffered was reasonably foreseeable.

For the avoidance of doubt Microcare shall not be liable for any delay in the repair of the Fault except to the extent that such a delay was a direct result of Microcare failing to reporting the Fault to the relevant Network Operator as soon as was reasonably practicable.

13.7 Except as set out expressly in this Contract, all conditions warranties, undertakings and obligations implied by statute, common law, custom, and trade or otherwise are excluded to the fullest extent permissible in English Law.

13.8 Subject to clause 13.4, Microcare’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed £1,000.

 

14. CONFIDENTIALITY AND USE OF CUSTOMER’S INFORMATION

14.1 Microcare and the Customer will keep in confidence any information, whether written or oral, of a confidential nature obtained under or in connection with the Contract except to the extent any disclosure is required by law. The Customer and Microcare will not, without the consent of the other, disclose such information to any person other than:

(a) the employees or professional advisers who shall require the information in order for the Customer or Microcare to fulfil its obligations under the Contract; or

(b) in the case of the Customer, its users of the Service to the extent that they are required to use or access the Service.

14.2 Information shall not be treated as confidential if it is:

(a) lawfully in the public domain other than in breach of the Contract; or

(b) lawfully in the possession of the Customer or Microcare before disclosure has taken place; or

(c) obtained from a third person who is entitled to disclose it; or

(d) replicated independently by someone without access or knowledge of the information.

14.3 If the Customer receives a request under the Freedom of Information Act 2000 which encompasses any information provided to the Customer by Microcare in connection with the Contract the Customer will notify Microcare immediately of the request and give Microcare at least 10 Working Days to make representations before releasing the requested information.

14.4 Microcare will only use Personal Data (as defined within the Data Protection Act 1998) obtained from the Customer following provision of the Service for the following purposes:-

(a) administering the Customer’s account;

(b) notifying the Customer of changes to the Service;

(c) enabling Microcare to supply the Service to the Customer; and,

(d) for invoicing purposes.

14.5 Microcare will not pass Personal Data obtained from the Customer to any third parties for marketing purposes but may send the Customer information about Microcare own products and services which it considers may be of interest to the Customer, unless the Customer specifically requests in writing that Microcare does not do so.

14.6 Any request under clause 14.5, either by the Customer, the Customer’s User or by the Customer on behalf of the User should be submitted in writing to Microcare Data Controller at Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB.

14.7 In assessing applications for and making decisions about credit, in respect of the Customer, Microcare may make the following searches for information pertaining to the Customer:-

(a) the files of credit reference agencies. The credit reference agency will keep a record of any search undertaken.

(b) identity and anti-fraud checks with fraud prevention agencies. If the Customer gives false or inaccurate information fraud is suspected, Microcare shall make a written note. Details of how the Customer conducts their account may also be disclosed to those agencies.

14.8 Information obtained from the agencies referred to in clause 14.7 may be used by Microcare and other parties for:

(a) checking the Customer’s identity,

(b) obtaining statistical analysis about credit or, fraud, and

(c) to manage the Customer’s account.

14.9 Microcare may also perform subsequent searches for the purpose of risk assessment, debt collection and fraud prevention with one or more credit reference agencies and/or fraud prevention agencies whilst the Customer retains a financial obligation to Microcare.

14.10 Information held about the Customer by credit reference agencies may be linked to records relating to the Customer’s financial associate(s). The Customer declares that the Customer and the Customer’s financial associate(s) are financially independent and the Customer requests that their application for the Service be assessed without reference to any "associated" records, although the Customer recognises that this may adversely affect the outcome of the application. The Customer confirms to the best of their knowledge that there is no information relating to their financial associates that is likely to affect Microcare’s willingness to offer the Services to them.

14.11 By agreeing to these Terms and Conditions, the Customer authorises Microcare to check the validity of this declaration with credit reference agencies and if Microcare discover any associated records, which would affect the accuracy of this declaration Microcare may suspend the Service or terminate this Contract with immediate effect. For the purpose of clauses 14.10 and 14.11 a "financial associate" is someone with whom the Customer has a financial link, for example, a spouse, partner or family member.

14.12 The Customer authorises Microcare to disclose, in the UK and globally, all pertinent information about them, their use of the Service and how they conduct their account for the purposes of providing the Customer with the Service or as required for reasons of national security or under any legal duty pass such information to associated companies, partners or agents, any telecommunications company, debt collection agency, credit reference agency, fraud prevention agency or governmental agency and other users of these agencies who may use this information for the same purpose as Microcare. The Customer agrees to this information being obtained by Microcare for credit control purpose and fraud and crime detection and prevention.

14.13 Any Customer who wishes to have details of the credit reference or the fraud prevention agencies Microcare uses to obtain information about the Customer or receive a copy of the information holds about them may do so by submitting a request in writing for a copy of the information to the Data Controller at Microcare at the address detailed in clause 14.6, stating the Customers full name, address, account number and phone. (Microcare may charge a reasonable administration fee for providing such information)

 

15. MOVING PREMISES

15.1 If the Customer is moving the Premises, Microcare must be informed as soon as is reasonably practicable so that suitable arrangements can be made to transfer the Customer’s data connection.

15.2 If the new installation or moving Premises involves the visit of an engineer to facilitate the new installation the Customer will be responsible for the costs incurred by Microcare (currently £195 for the first hour and £95 per hour thereafter with a £30 charge for half hour of travelling time plus VAT). There will be a charge for any missed appointment due to the Customer’s failure to attend (currently £195.00 plus a travel charge of £30 per half hour) together with an administration fee of £45.00

15.3 If the Customer moves Premises and leaves the installation for the new owner/tenant the Customer is required to inform them that the Service will be discontinued if Microcare are not contacted by the new owner/tenant within 72 hours for the purpose of entering into a new Contract.

15.4 If the Customer currently receives services from an alternative supplier the Customer is responsible for any contractual agreement the Customer has with them and any liabilities the Customer may incur for terminating the Customer’s current agreement.

 

16. USER NAMES AND PASSWORDS

16.1 Microcare will provide the Customer with a username and password which will remain the property of Microcare in order to access the Service. The Customer agrees to keep this username and password confidential and agrees to take all necessary steps to ensure their confidentiality and that they are not disclosed to any unauthorised third parties.

16.2 The Customer agrees to inform Microcare if they become aware of or suspect any unauthorised use of their username and password and agrees to take all necessary steps (or such steps as may be requested by Microcare) to prevent such use.

16.3 The Customer agrees not to change or attempt to change a user name without Microcare’s written consent.

16.4 Microcare reserves the right (at its sole discretion):

16.4.1 to suspend or change user names and password access to the data Services if at any time Microcare thinks that there has been or is likely to be a breach of security; and

16.4.2 to ask the Customer to change any or all of the usernames and passwords they use in connection with the Service.

16.5 The Customer accepts and acknowledges that the Service, like other internet applications, is not secure and that Microcare does not guarantee the prevention or detection of any unauthorised attempts to access or use the Service.

 

17. GENERAL TERMS

Matters Beyond Reasonable Control

17.1 (a)If Microcare is prevented from, or is delayed in performing, any obligation under the Contract because of something beyond its reasonable control including without limitation act of God, storm, lightning, flood, exceptionally severe weather, fire, explosion, failure or shortage of power supplies, default of suppliers or subcontractors, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, war, riot, civil disorder, malicious damage, strikes, lock-outs or other industrial disputes (whether involving the workforce of Microcare or any other party) or acts or omissions of local or central government, highways, OFCOM or any other Network Provider or other competent authorities, or beyond the reasonable control of its suppliers, it will have no liability to the Customer for that failure or delay in performing.

(b) Microcare will not be liable for failure to or delay in supplying the Service if legal or regulatory restrictions are imposed that prevent Microcare from supplying the Service.

Dispute Resolution

17.2 (a) Microcare will attempt to resolve any dispute that the Customer may have with Microcare under Microcare’s Complaints Handling and Dispute Resolution Code of Practice, a copy of which can be obtained from the Complaints Handler, Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB. If the dispute cannot be resolved within 12 weeks of the Customer raising the dispute with Microcare, then the Customer may refer the matter to:

(i) the Telecommunications Ombudsman, via the website (www.otelo.org.uk) or by telephone on 0845 050 1614; or

(ii) OFCOM, the communications regulator via the website www.ofcom.org.uk or by telephone on 020 7981 3040 or 0300 123 3333.

(b) Any dispute must be submitted in writing to Microcare’s Customer Services Centre giving all relevant details including the nature and extent of the dispute.

(c) Nothing in this clause 17.2 shall prevent the Customer or Microcare from exercising any rights and remedies that may be available in respect of any breach of the provisions of the Contract.

Customer’s Instructions

17.3 Microcare may take instructions from any person whom it reasonably believes is acting with the Customer’s authorisation.

Assignment

17.4 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Microcare. Microcare may at any time assign, transfer charge, subcontract, delegate or deal in any other manner with all or any of its rights or obligations under this Contract without the consent of the Customer.

17.5 Nothing in this contract shall be deemed to grant to the Customer a licence to use any software or other intellectual property right other than strictly in accordance with the terms of this Contract. For the avoidance of doubt, the Customer shall not be entitled to sub-license any such software or intellectual property right. 

Severability

17.6 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be unenforceable, invalid or illegal, the other provisions of the Contract shall not be affected. If any unenforceable, invalid or illegal provision would be enforceable, valid or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intentions of the parties.

Entire Agreement

17.7 (a) The Contract and any documents referred to in it constitute the entire agreement between the Customer and Microcare and replaces all previous negotiations, representations, proposals, understanding and agreements between them whether written or oral relating to the subject matter of the Contract.

(b) Each party acknowledges and agrees that, in entering into this Contract and the documents referred to in it:

(i) it has not relied upon any statement, representation, warranty or other assurance of any person (whether a party to this Contract or not) not expressly incorporated in this Contract or those documents; and

(ii) in connection with the Contract the only rights and remedies available to it in relation to any statement, representation, warranty or other assurance are for breach of contract.

(c) Nothing in this clause shall limit or exclude any liability for fraud.

Waiver

17.8 (a) A failure or delay by the Customer or Microcare to enforce any right, remedy provided under this Contract or act upon a breach under the Contract shall not be deemed to be a waiver of that right, remedy or breach or any other right, remedy or breach.

(b) If the Customer or Microcare waives a right, remedy or breach of the Contract, that waiver is limited to the particular right or breach.

(c) The single or partial exercise of any right or remedy by the Customer or Microcare does not operate as a bar to the exercise or enforcement of any right, power or remedy on any later occasion.

Rights of Third Parties

17.9 A person who is not a Party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. However, this does not affect any right or remedy of a third party that exists or is available apart from that Act.

Notices

17.10 Unless otherwise stated in the Contract, notices given under the Contract must be in writing and delivered by hand, sent by e-mail or sent by prepaid first class post or recorded delivery or by commercial courier to:

(a) Microcare at Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB  or such other address as may be communicated to the Customer; or

(b) the Customer at the address to which the Customer asks Microcare of Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB to send correspondence and bills.

17.11 The Customer must inform Microcare at Hamilton House, Warth Road, Bury, Lancashire, BL9 9NB immediately if there is any change to any of the contact information previously supplied.

Law and Jurisdiction

17.12 (a) This Contract and any disputes or claims arising out of or in connection with its subject matter shall be governed by and interpreted in accordance with English law.

(b) The Customer and Microcare irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim, which may arise out of, under, or in connection with this Contract.

Microcare Service Definitions

1 About Internet access

1.0 Microcare’s Internet access solution is to provide all or most of the physical and logical infrastructure to give a Customer the ability to transmit Internet Protocol (IP) traffic between a single UK site and the global Internet infrastructure.

1.1 The product involves one or two access services from the customer location to Microcare’s internet access platform

1.2 Internet Access Services (sections 3.0 and 4.0)

• NetEFM +N

1.3 The service optionally includes Customer Premises Equipment (CPE) to connect that access service to the customer’s local network or computing facilities

1.4 Customer Premises Equipment

• Draytek (Various Models)

1.5 The upstream service boundaries are the various physical interconnects between the Microcare Internet access platform and network facilities that are part of the upstream Internet infrastructure, but not under Microcare’s control.

1.6 If the customer has not purchased CPE services from Microcare, the downstream service boundary for this solution is the Network Termination Unit (NTU) of the circuit at each site, which will typically be rack mounted. This type of Internet access service is referred to as wires only.

1.7 If the customer has purchased CPE services from Microcare, the downstream service boundary for this solution is the LAN interface of the CPE. This type of Internet access service is referred to as managed.

1.8 Also included is the lease of RIPE allocated addresses associated with the connectivity system to enable Internet access. The number of IP addresses and whether they are static or dynamic depends on the access service selected.

2 Microcare's Internet access platform

2.0 The nature of the platform is to enable reliable and high performance IP traffic transfer between Microcare’s customer’s access services and the public Internet infrastructure.

2.1 Unless otherwise noted, one of the access services is defined as the primary access service and the other as a secondary. The secondary access service is not used in normal operation and is considered as a passive standby.

2.2 The access service type determines which circuit is the primary route for traffic to a site. Access service type precedence is as follows: Ethernet- Leased line - ADSL2+ - ADSL, EFM

2.3 Access service availability monitoring

2.3.1 Only fixed line (leased lines or Ethernet) Internet access services are polled for availability by Microcare’s automated monitoring system.

This occurs at five-minute intervals. If three checks in a row fail, an alarm state is generated.

This means the quickest an alarm state will be generated subsequent to an outage will be ten (10) minutes. The worst case is fifteen (15) minutes.

2.3.2 An alarm state will generate a ticket in Microcare’s support queue. Optionally it can be used to generate an e­mail and/or an SMS to the customer. This can be requested from your account manager, or by raising a ticket with Microcare’s Technical Support Centre (TSC)

2.3.3 To ensure a prompt response, Microcare urges customers to telephone Microcare to report a fault as per the Internet access SLA

2.4 Access service traffic graphing

2.4.1 Only fixed line Internet access services are polled for traffic load statistics by Microcare’s automated monitoring system at five-minute intervals.

2.4.2 Traffic data is used to build a traffic profile for each access service, which is available, in near real-time, via a portal.

2.4.3 To obtain a username and password for access to the graphing portal, please make a written request to your account manager, or raise a support ticket with Microcare’s Technical Support Centre (TSC)

2.5 Internet access traffic management

2.5.1 Microcare’s Internet access platform does not filter traffic, shape it or otherwise interfere with it under normal operations. There are no download limits or restrictions to protocols employed.

2.5.2 The Internet Access platform does filter so called Bogon packets, packets with malformed packet headers, packets from private address space (as identified by RFC) and to mitigate other packet based security risks.

2.5.3 In the event of network traffic that is identified as an attack, Microcare reserves the right to proactively block traffic as close to the source as possible and then conduct an investigation into the source of the traffic. This will be in partnership with customers (if the attack source is internal to Microcare’s borders) or with other service providers (if the attack source is external to Microcare’s borders).

3 Access Services, Capacity and Contention

3.1 Access service general availability

3.1.1 All Internet access services are subject to geographical availability and subject to survey.

3.2 Internet access using ADSL

3.2.1 Internet access using ADSL requires, and does not include, a standard non­LLU SMPF copper pair. Optionally Microcare can provide a suitable circuit.

3.2.2 Downstream platform access is provided at the following maximum theoretical data rates:

• ADSL Max services 8Mbps
• ADSL 16/M services 24Mbps

3.2.3 For ADSL Max services; An automated Dynamic Line Management (DLM) system establishes a Maximum Stable Rate (MSR) for each line independently. The MSR may be significantly lower than the theoretical maximum because of building infrastructure issues, local copper quality and wire distance from the local exchange.

3.2.4 Actual synchronisation rates will vary on a day today basis due to external influences like interference. If the synchronisation data rate drops 30% below the MSR, then an unusually poor performance fault can be reported.

3.2.5 Unacceptable performance thresholds exist for the downstream performance according to the following calculation:

Unacceptable downstream performance threshold = 10% of the Synchronisation rate

No such performance thresholds exist for upstream data rates, which are generally more predictable than downstream data rates.

3.2.6 Interleaving adds to circuit latency, but stabilises the access circuit at high data rates. ADSL Max services have

3.2.7 Contention means the access circuit capacity might be used by several local entities. As a consequence, performance may vary during the day depending on congestion at the local exchange.

3.2.8 Traffic from SOHO 16, Network 16 and Network M services are given the highest priority. Traffic from Network Max services are a medium priority. Traffic from all other services is low priority. Priority is only honoured over the broadband access service, not the Internet access platform.

3.3 Netreach

3.3.1 NetReach includes a dedicated copper E1 circuit. No fibre version is available.

3.3.2 Upstream and downstream platform access is provided at a committed data rate of 1536kbps. The service can burst up to 2048kbps, but this additional capacity is not guaranteed.

3.3.3 NetReach is an uncontended service up to the committed data rate. Other users of the local exchange do not impact access circuit performance.

3.4 NetConnect Bonded 4000

3.4.1 NetConnect bonded 4000 includes two dedicated copper or fibre circuits.

3.4.2 Where there is spare fibre at a customer site, each 2048kbps circuit is delivered on a single fibre tributary E1. Where there is no fibre, the circuit can be delivered as a copper singleton but there is an additional charge for copper installation. Where there is no fibre, the customer can request a new fibre bearer, but there is an additional charge for a new fibre installation.

3.4.3 Regardless of how the circuit is deployed, there is always a chance that a survey will identify that additional ancillary charges will need to be paid to complete an installation.

3.4.4 Upstream and downstream platform access is provided at a maximum theoretical data rate of 2048kbps on each circuit.

3.5 NetConnect E10/E100/E1000

3.5.1 NetConnect E includes a dedicated fibre circuit.

3.5.2 There is always a chance that a survey will identify that additional ancillary charges will need to be paid to complete an installation.

3.5.3 Upstream and downstream platform access is provided at a maximum theoretical data rate of 10Mbps (E10), 100Mbps (E100) or 1Gbps (E1000).

3.5.4 NetConnect E services are tiered. This means that the customer sets the actual data rate to one of the following capacities: E10 – 2 ­10Mbps in 2Mbps steps E100 – 10 ­100Mbps in 10Mbps steps E1000 – 100 – 1000Mbps in 100Mbps steps

3.5.5 NetConnect E10/E100/E1000 is an uncontended service. Other users of the local exchange do not impact access circuit performance.

3.5.6 NetConnect E10/E100/E1000 is delivered onto the Microcare Internet Access platform using VLANs. Customer VLAN tags will not be honoured by the service. 802.1 Q­in­Q is not supported.

3.5.7 All Ethernet service performance is very sensitive to CPE interface settings, specifically in terms of speed and duplexity. In most cases, the service will be full duplex by default and will auto­negotiate speed. However this can vary depending on exact delivery parameters. If there is any doubt, please contact Microcare’s Technical Support Centre.

3.6 NetEFM +N

3.6.1 NetEFM includes 2­8 dedicated copper pairs and involves bonding circuits at a network level, presenting at the customer site as a single copper Ethernet interface.

3.6.2 There is always a chance that a survey will identify that additional ancillary charges will need to be paid to complete an installation.

3.6.3 Upstream and downstream platform access is provided at a maximum theoretical data rate of 10Mbps.

3.6.4 NetEFM services operate at a set maximum bandwidth selected at point of order from a range between 1Mbps and 10Mbps in 1Mbps increments.

3.6.5 NetEFM is an uncontended service. Other users of the local exchange do not impact access circuit performance.

3.6.6 NetEFM is delivered onto the Microcare Internet Access platform using VLANs. Customer VLAN tags will not be honoured by the service. 802.1 Q­in­Q is not supported.

3.6.7 NetEFM requires any CPE to be configured with the interface speed specifically set to 10Mbps full duplex, rather than “auto”.

3.6.8 NetEFM is subject to copper quality at the local customer site. It is possible that, during survey, the site will be found to have copper of insufficient quality to support EFM services. In Microcare’s experience, this occurs in around 15% of installations.

4 Access circuits, reliability and fault resolution

4.1 Access service general fault resolution

4.1.1 Faults will be resolved according to the principles and goals detailed in the Internet access SLA.

4.1.2 If Microcare’s customer instructs Microcare to send an engineer to the customer site to investigate a possible fault with the access service, Microcare will charge their customer a fee of £199.00 1^st hour £99.00 subsequent hour plus £35.00 per half hour travel(exc. VAT) if the fault is found to be with customer equipment or facilities. Statistically this occurs in around 7% of DSL issues raised with BT, for example.

4.2 Internet access using ADSL

4.2.1 Where Microcare is not the supplier for the PSTN service that the DSL service relies upon; Microcare is not responsible for resolving faults with the copper local loop from the customer’s site to the local exchange.

4.2.2 Microcare’s design criteria suggest that statistically the mean time between failures (MTBF) of an individual DSL access service is 15 months. 20% of these faults require escalation to broadband supplier. 80% of faults escalated to a broadband supplier are resolved within 5 days. Microcare expects a DSL service to be available 99% of the time.

4.2.3 Root cause of connectivity failure by incident volume:

• 20% Exchange, DSLAM or cable fault
• 15% xDSL access layer fault
• 10% Customer equipment
• 7% Service provider network fault
• 40% fault not found or right when tested

4.3 NetReach, NetConnect, NetConnect E10/E100/E1000

4.3.1 Microcare’s design criteria suggest that statistically the mean time between failures (MTBF) of an individual fixed line access service is 20 months. 90% of these faults require escalation to circuit provider. Average time to restore service from escalation is five hours. Microcare expects fixed line service to be available 99.9% of the time.

4.4 NetEFM

4.4.1 Microcare does not yet have sufficient data to generate meaningful statistics about EFM’s general availability. Microcare’s target availability, based on test data, and the fact that Microcare uses a minimum of two copper pairs to deliver the service, is 99.7%.