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Terms and Conditions for Maintenance and Software Support

  1. Effect

    These terms and conditions shall prevail over any proposed by the customer or implied by trade custom or practice and this agreement will only be concluded on that condition Total Comms UK Ltd failure to object to any other terms proposed by the customer shall not be deemed a waiver of that condition.
  2. Duration

    1. Subject to the provisions of paragraph 13 providing for earlier termination, this agreement shall commence on the commencement date shown on the face hereof (“the commencement date”) and shall continue: -
      1. Where an initial period is shown on the face hereof (“the initial period”) for the initial period and thereafter from year to year unless or until terminated by either party giving not less that 42 days prior written notice sent by recorded delivery expiring at, or on any anniversary of, the end of the initial period, or
      2. In all other cases, from year to year unless or until terminated by either party giving to the other not less than 42 days prior written notice sent by recorded delivery expiring on any anniversary of the commencement date.
  3. Extent of Maintenance and Software Support Services

    1. Throughout the term of this agreement Total Comms UK Ltd shall maintain the system in efficient working order and shall provide the maintenance and software support service (“the maintenance service”) listed in schedule 111 subject to the provisions of that schedule and these terms and conditions.
    2. The maintenance service does not include: -
      1. Any alteration of the system to meet a change in the customers requirements or the standard or requirements of British Telecom or other relevant public network operators (“the network operator”) or other relevant authority.
      2. Any electrical or other work external to the system, moving and re-installation of the system, or replacement of consumable materials.
      3. The costs of repair or replacement or extra service time made necessary by accidental damage, misuse, negligence or failure to observe Total Comms UK Ltd recommendations or those of the Network Operator or other relevant authority or for causes external to the system such as, but not limited to, failure or fluctuation of electrical power or air conditioning or any defect or failure in relevant public telecommunications network.
      4. Modifications or reconfigurations necessary to enable multi-tenant use of the system.
      5. Any failure of line wiring (where included as part of the System) other than by reason of fair wear and tear.
      6. Any cabling not installed by Total Comms UK Ltd.
      7. any equipment not comprised in the Equipment listed at Schedule 1. Total Comms UK Ltd reserves the right to charge the customer for any such services and costs.
    3. If, after seven years from the sate on which the System is ready for service, Total Comms UK Ltd, reasonably forms the opinion the System can no longer be economically maintained to the necessary high standards it will notify the Customer of Total Comms UK Ltd estimate of the cost of rebuilding or reconditioning or the parties fail to agree on the appropriate charges, the Total Comms UK Ltd shall be entitled by written notice to withdraw Maintenance Services.
  4. Customer’s Responsibilities

    1. The Customer is responsible for: -
      1. Ensuring that the environmental condition at the Site (as approved by Total Comms UK Ltd and /or the Network Operator or other relevant authority from time to time) are maintained at all times.
      2. Ensuring that Total Comms UK Ltd engineers have full free and timely access to the system and the customer should provide adequate working and storage space, and such other facilities as the engineers may reasonably require and should observe any common law or statutory requirements relating to health and safe place of work.
    2. The customer shall maintain all such records as are required by the terms of the Branch System Licence as issued from time to time by the Secretary of State and Industry and shall make records available to Total Comms UK Ltd.
    3. The Customer shall indemnify Total Comms UK Ltd against all claims from the Network Operator and of others in the event that
      1. The Customer allows the System to be altered, adjusted or interfered with by any other Total Comms UK Ltd authorised engineers.
      2. Total Comms UK Ltd is unable to keep the System in good working order due to causes within the control of the customer.
  5. Limitations

    1. Unless otherwise agreed in writing by Total Comms UK Ltd the System must not in any circumstances be altered, adjusted or interfered with except by Total Comms UK Ltd authorised engineers.
    2. Total Comms UK Ltd will not be liable for the failure to provide the Maintenance Service if the failure results from any any “force majeure” event (whether happening in the United Kingdom or elsewhere), such as but not limited to Act of God, refusal of licence or other governmental act, fire, explosion, accident, lightning damage, electromagnetic interference, industrial dispute, difficulty in obtaining materials or any cause beyond its reasonable control.
  6. Warranty

    1. Total Comms UK Ltd warrants that it will exercise all reasonable care and skill in the provision of the Maintenance Service. However, the parties agree that the effects of any failure on Total Comms UK Ltd part to provide Maintenance Service promptly and efficiently will be difficult to quantify and that Total Comms UK Ltd cannot have knowledge of the consequences of such failure.
    2. In no event (whether this agreement continues in force or not) shall Total Comms UK Ltd be liable for any loss of contracts, profits, business or use of the System nor for any other indirect or consequential loss whatsoever attributed to delay or failure to provide Maintenance Service.
    3. All other express or implied terms conditions of warranties and any liability in tort (other than negligence of Total Comms UK Ltd, its servants, agents or subcontractors causing death or personal injury).
  7. Payment of Maintenance Charges

    1. The initial charge for the Maintenance Services (“the Maintenance Charge”) shall be specified in Schedule 1. The Maintenance Charge shall be payable annually in advance.
    2. Any additional payment which may become due during the period covered my Maintenance Charge shall be payable with the due date specified in the relevant Total Comms UK Ltd invoice.
  8. Adjustment

    The Maintenance charge may be adjusted at any time in the event that
    1. The class of Maintenance Service is provided for the System is changed for any reason by mutual agreement.
    2. Any changes are made to the requirements of the Network Operator affecting the provision of the Maintenance Service for the System.
    3. Revised software installed in the System for any reason.
    4. The software installed in the System in no longer a current release.
    5. The system is extended by the addition of further hardware. In this event the Maintenance Charge shall be increased by the rate applied by Total Comms UK at the relevant time for the Maintenance of the additional hardware.
  9. Annual Review

    In addition to any adjustment made to the Maintenance Charge pursuant to clause 8, Total Comms UK Ltd, may at any time following the first anniversary date of this agreement adjust the Maintenance Charge. Such adjustments shall not be made at intervals more frequently than once in every twelve months period.
  10. Conditions

    1. Total Comms UK Ltd reserves the right to make a charge for the time and expenses incurred by its personnel being called out due to faults not on the System (e.g. The Network Operator line faults, power supply fluctuations, etc.) or if the System is reported as faulty and proves not to be so.
    2. In addition to the Maintenance Charge, the Customer shall pay Total Comms UK Ltd all additional charges for maintaining the system where maintenance is due to other circumstances other than wear and tear.
    3. The customer’s attention is drawn to the terms and conditions for software support as set out in Schedule 111.
    4. Total Comms UK Ltd shall be under no obligation to provide maintenance service so long as any sum due is in arrears for more that fifteen days and any additional charges incurred by the consequent delay in carrying out maintenance services shall be paid by the customer.
  11. Interest

    Any money due or payable to Total Comms UK Ltd under this agreement which is ten days or more overdue shall bear interest on a day to day basis at the rate of 4% (four percent) over the Base Lending Rate of the Natwest bank from due date until date of payment and monies received may be applied by Total Comms UK Ltd at its option against such interest prior to application against other monies due from the customer.
  12. Default and Termination

    If the customer commits any breach of this agreement or any other agreement with Total Comms UK Ltd and fails to remedy it promptly on receiving written notice from Total Comms UK Ltd or suffers distress or execution or commits an act of bankruptcy or goes into liquidation (except for amalgamation or reconstruction) or if it entered into an agreement or composition with creditors or is a receiver is appointed over any part of the customers business, or in the case of a partnership any of the partners is declared bankrupt, it shall constitute a repudiation by the customer of its obligations under this agreement and at any time thereafter Total Comms UK Ltd may (in addition to any other rights or remedies in law and notwithstanding that Total Comms UK Ltd may have waived its rights under this condition on so previous occasion) by written notice suspend performance of or determine the maintenance services.
  13. Legal Construction

    This agreement shall be governed by English Law and be subject to the jurisdiction of the English Courts. The legal construction of these conditions shall not be affected by their headings.
  14. Invalidity

    If any provision of this agreement becomes invalid, illegal, or un-enforceable the other provisions of this agreement shall not be affected thereby.
  15. Entire Agreement

    This agreement with the schedules together with any authorised signed variations attached here to set forth the complete agreement between the parties. No further amendment or modification to this agreement will be effected or binding unless it is in writing signed by duly authorised representatives of the parties.
  16. Notice

    Any notice giving in writing on company letterhead and signed by an authorised signatory.

Schedule 111

  1. Total Comms UK Ltd care services

    1. Standard Care (Monday to Friday cover)

      Total Comms UK Ltd will use all reasonable endeavours to respond within 16 working hours to a request for maintenance services received during Total Comms UK Ltd’s normal working hours 9am – 5pm (excluding weekends and Bank and Public holidays) either by arranging for a service engineer to make a site visit or by instituting remedial action through remote interrogations. Total Comms UK Ltd shall attempt to rectify or provide appropriate interim solutions within 16 working hours on the basis of remedial work being confined to Total Comms UK Ltd normal working hours.
    2. Principle care (Sunday to Saturday excluding bank holidays

      Total Comms UK Ltd will use all reasonable endeavours to respond within 8 working hours to a request for maintenance service received between 9am to 5pm either by arranging for a service engineer to make a visit or by instituting remedial action through remote interrogation. Total Comms UK Ltd shall attempt to rectify or provide appropriate interim solutions within 16 working hours for main system failure. Handsets and non-critical equipment will be dealt with in normal working hours.
    3. Constant care (365 days)

      Total Comms UK Ltd will use all reasonable endeavours to respond within 8 hours to a request for maintenance service received at any time either by arranging for a service engineer to make a site visit or by instituting remedial action through remote interrogation. Total Comms UK Ltd shall attempt to rectify or provide appropriate interim solutions within 16 working hours for main system failure. Handset and non critical equipment will be dealt with within normal working hours
  2. Maintenance Service Provided

    Subject to the conditions stated in the agreement Total Comms UK Ltd shall at its discretion carry out routine checks by Total Comms UK Ltd engineers for preventative maintenance of the system.
    1. Total Comms UK Ltd will require remote access to the system to carry out periodic checking of the system performance using remote diagnostics.
    2. Total Comms UK Ltd service engineers will require site access to the system to make adjustment and repairs if remote diagnostics indicates any faults.
  3. Software Support

    1. Corrections and Fixes

      Once the cause of a problem has been identified as a software fault a patch fix or a voidance procedure will be issued and installed by Total Comms UK Ltd maintenance staff. Periodic notices will be issued to customers using latest releases of the system software covering reported problems and any avoiding action necessary. These notices will include any updates to the user manual necessary to clarify operating instructions.
    2. Releases

      The release of system software as supplied will be fully supported for a period of non less than 12 months from the ready for service date. After such period has expired Total Comms UK Ltd may substitute a later release of software, which will, where appropriate, incorporate full corrections in lieu of patch fixes and avoidance procedures on the earlier release. Later releases avoiding the same features and facilities as an earlier release will be provided free of charge but if Total Comms UK Ltd is required for any reason to incorporate any additional features and facilities available on a new release in the customers system, then the new release will be charged for in accordance with Total Comms UK Ltd’s then applicable lump sum licence fee for the release in question. Any modifications or additions to system hardware that may be necessary to provide an interface with a later release will be undertaken by Total Comms UK Ltd but shall be chargeable to the customer in accordance with Total Comms UK Ltd’s then applicable charges based on the quantity of hardware supplied and the amount of work involved. Whenever configuration of system software is required to alter the operational parameters of the system the customer shall pay a reconfiguration charge to Total Comms UK Ltd based on Total Comms UK Ltd’s generally applicable charges for reconfiguration work. The customer acknowledges that later releases of the system software may create operational differences in the available features and facilities of an earlier release. Total Comms UK Ltd undertakes to use all reasonable endeavours to minimise such differences, but in no event shall Total Comms UK Ltd be liable for operational difficulties caused by or arising from the integration of later releases of system software with third party supplied equipment.