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MTech Telecoms Terms & Conditions

 
DEFINITIONS
 
In this Agreement the following terms shall have the following meanings:
 
"Additional Work " means any additional work which the Customer requests which relates to bespoke non-generic work for the Customer unrelated to maintenance or fixing of faults, including without limitation a change to an existing telephone program configuration, adding or deleting users, creating or altering number diverts, is suing new or non-geographic numbers and any changes to system programming which are requested after a telephone system has been installed for 14 days or longer (for clarity any changes to system programming requested after a system has been installed for 14 days, shall be entirely at the discretion of MTech);
 
Agreement ” means the Order Form and these terms and conditions;
 
"Call Bundle " means as defined in the "Hosted Telephony" or "Telephone Line Rental and Call Agreement" section of the Order Form, and sets out the amount of inclusive minutes per call destination;
 
"Call Charges " means the cost per call or calls as shown on the Customers Services Invoice;
 
"Call Tariff " means as defined in the "Hosted Telephony" or "Telephone Line Rental and Call Agreement" section of the Order Form and relates to the breakdown showing the cost per call or per minute of a Call Charge per destination;
 
Charges” means the charges to be paid by the Customer to MTech in respect of goods and services supplied upon the Customer’s request (including but without limitation those charges set out in the Order Form);
 
"Commencement Date " means the date of the signing by the last party or the Go Live date whichever is the later;
 
"Confidential Information" means all information whether technical or commercial know-how (including all specifications, inventions, processes, initiatives, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties) given by one party to the other or otherwise obtained by one party relating to the other party’s business, finance or technology, know -how, IP Rights, assets, strategy, products and customers, including information relating to management, financial, marketing, technical and other arrangements or operations of any person, firm, or organisation associated with that party where the information is: (a) identified as confidential at the time of disclosure; or (b) will reasonably be considered confidential given the nature of the information or the circumstances of disclosure;
 
Customer ” means the person or entity whose details are set out on the Order Form;
 
Customer Equipment ” means any equipment (including, without limitation, any router, data switch, telecommunications apparatus or system) owned or controlled by the Customer (or Customer' s nominated third-party supplier), but not including the Service Equipment;
 
DDM” means a Direct Debit Mandate;
 
"Deposit " means the payment required upfront in order to release Service Equipment as detailed in the "Payment Profile" of the "Telephone System And Maintenance Agreement" section of the Order Form;

"Director / Manager " means any director or manager of MTech or the Customer;

Documentation” means any specifications, technical manuals, user instructions or other documentation supplied by MTech;

Equipment ” means the equipment detailed in this Order Form;

Equipment Supplier ” means the relevant supplier for the Service Equipment;

Excess Construction Charge ” means additional charges beyond reasonable standard charges, detailed to MTech by the Licensed Operator in order to provide the Service to a Customer premises;

"Extended Term" means successive 12 month terms after the Minimum Term that the parties are contracted, due to an extension of the agreement pursuant to clause 12.1;

IP Rights” means any copyright, patent, registered design, trademark or other intellectual property right (or applications);

Licensed Operator ” means a telecommunications provider authorised by Ofcom;

"Maintenance " means as defined in sections "Telephone System And Maintenance Agreement" and / or "Hosted Telephony" of the Order Form;

Minimum Term” means as defined in the "Duration of Agreement" section of the Order Form starting from the date the Service is activated or Service Equipment Is delivered. In the event that multiple Service's within this agreement activate at different dates, each individual service component shall be the Minimum Term from this date activated;

"Number Porting " means the facility by which the Customer can transfer its telephone number(s) when switching from another supplier to MTech and vice-versa;

Order Form” means the request for the Services attached;

Partner ” means any person, company or organisation that has been appointed by MTech and named in the Order Form under the "Partner" section of page 2 of this Agreement;

RPI” means Retail Price Index being the general index of retail prices published by the Office for National Statistics each month in respect of all items;

Service ” means Telephone Lines, Hosted Telephony, Maintenance, Call Bundle, Internet Connectivity service(s) and any installation of Service Equipment, that the Customer has requested from MTech on the Order Form;

"Service Deposit" means a sum of money paid by the Customer and held by MTech as a deposit or a payment by the Customer for the Service;

Service Equipment ” means the electronic communications equipment, including without
limitation telephone handsets or the telephone system MTech may from time to time install at the Customer’s premises for the purposes of providing the telecoms Service;

"Services Invoice " means monthly invoice by MTech for Service charges and Call Charges or Additional Work

MTech” means MTech IT (Leeds) Ltd t/a MTech (Company Number: 08000324) of 20-22 St Michaels Road, Headingley, Leeds LS6 3AW ; and

"VAT " means value added tax chargeable under the Value Added Tax Act 1994 .

A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

Words in the singular include the plural and, in the plural, include the singular. Headings do not affect the interpretation of these Conditions.
 
1. PROVISION OF SERVICES

1.1 MTech undertakes to provide, and the Customer undertakes to use, the Service described on the Order Form on the terms set out in this Agreement.
 
1.2 Subject to any variation under clause 1.3, the Agreement shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
 
1.3 These Conditions apply to all MTech’s sales and any variation to these Conditions and any representations about the Equipment or Service shall have no effect unless expressly agreed in writing and signed by a Director / Manager of each party. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of MTech which is not set out in the Agreement. Nothing in these Conditions shall exclude or limit MTech’s liability for fraud or for fraudulent misrepresentation.
 
1.4 No order placed by the Customer shall be deemed to be accepted by MTech until the earlier of: (a) a written acknowledgement of order is issued by MTech; (b) the Order Form is signed by a Director / Manager of each party; or (c)MTech delivers the Service Equipment and/or Service to the Customer.
 
1.5 The Customer acknowledges that MTech will supply the Service Equipment and Service at the request of the Customer and that it is Customer’s responsibility to determine whether the Service Equipment and Service are suitable for its requirements.
 
1.6 MTech will be free to contract for such telecommunications services and facilities from any Licensed Operator(s) and Equipment Supplier(s) as it may consider necessary in order to enable it to provide the Service. MTech will be solely responsible for paying all agreed relevant charges in connection with such services.
 
1.7 MTech will at all times use best endeavours to deliver the Service and Service Equipment within any time frames agreed by both parties. The Customer acknowledges that due to the nature of (but not limited to) number porting, access to site, Service Equipment availability and BT Openreach availability (and any other third-party carriers), unless expressly agreed in writing by MTech, time for performance of any obligation by MTech shall not be of the essence in this Agreement.
 
2. CHARGES AND PAYMENTS

2.1 In order to comply with standard industry or OFCOM changes or to reflect industry wholesale (and other relevant) price increases, MTech reserves the right to make variations and additions to its Call Tariffs, as and when it deems appropriate or as instructed to make such changes by OFCOM. For clarity, there will be no price increases for small business subscribers as defined in Ofcom's rule GC 9. 6 during the Minimum Term.
 
2.2 MTech reserves the right to charge the Customer for any Additional Work that is requested by the Customer. Where such work can be completed remotely MTech shall charge the Customer £49.00 plus VAT per 30-minute period of time incurred. Where such Additional Work requires onsite attendance MTech shall provide a quotation to the Customer on an ad hoc basis subject to a minimum charge of £199.00 plus VAT. MTech shall not commence, and the Customer shall not be liable to pay for, any Additional Work unless the Customer has expressly instructed MTech to commence such work in writing and has expressly agreed the additional Charges in writing (email shall be an acceptable form of notice).
 
2.3 The Customer shall be invoiced monthly by MTech for all Charges under this Agreement plus VAT. Payment for monthly services is due on the 1st of the Month in advance and must be paid by Direct Debit. The time for payment of all sums due to MTech under this Agreement shall be of the essence of this Agreement. If payment in full is not received by the due date MTech shall be entitled to charge interest on outstanding amounts at a rate of 5% above UK HSBC bank base rate per month calculated at a daily rate from the d ate the payment became due until actual payment is made (irrespective of whether the date of payment is before or after any judgment or award in respect of the same). Should MTech refer the Customer’s account to a collection agency, MTech will also add a referral fee to the amount owing. The current referral fee is £200 plus VAT.
 
2.4 Without prejudice to any other remedies which may be available, MTech reserves the right to suspend or withdraw provision of the Service where payment of an invoice has not been received by the last day of the month in which the payment of the invoice became due and the due date has passed.
 
2.5 Without prejudice to any rights that MTech may have to terminate this Agreement pursuant to clause 4 of this Agreement, where MTech has exercised its right to withdraw or suspend provision of the Service in accordance with clauses 2.4, 2.18, 11.1a), 11.1b) or 11.1c) MTech shall not resume the Service until the Customer has paid a re-connection fee of £125 + VAT and MTech is in receipt of cleared funds to bring the account up to date, including payment of any administration fee or other fees payable pursuant to this Agreement.
 
2.6 Where payment is to be made by the Customer by means of a DDM and such DDM instruction is returned unpaid, MTech shall charge an administration fee of £25.00 + VAT. In the event that further DDMs are returned unpaid within 12 months of a previous unpaid DDM then MTech shall charge an administration fee of £50.00 + VAT per unpaid DDM.
 
2.7 All sums due to MTech under this Agreement shall be paid in full by Customer without any set-off whatsoever.
 
2.8 All application charges payable under this Agreement shall be calculated by reference to data recorded or logged by MTech and/or associates and not by reference to data recorded or logged by Customer. Invoices will be presented in MTech’s standard format.
 
2.9 All sums referred to in this Agreement are exclusive of VAT and any other taxes of a similar nature that may from time to time be introduced.
 
2.10 MTech reserves the right to reasonably increase the charges payable in respect of Service Equipment to reflect any increase in cost to MTech which is due to any factor beyond MTech’s control (including without limitation) any change of supplier pricing, foreign exchange fluctuation, currency regulation and alteration of duties) provided MTech gives written notice to the Customer at any time.
 
2.11 In order to reflect industry wholesale (and other relevant) price increases, MTech reserves the right in any successive 12 month period from any point after the Commencement Date to increase the charges payable in respect of the Service or Maintenance up to 5% or, if greater, by a percentage equal to the percentage increase in RPI over the preceding 12 months.
 
2.12 Within the provision of providing Internet Connectivity, any Excess Construction Charges imposed upon MTech by the Licensed Operator will not form part of the standard installation costs or be included within any “free of charge” new line installation/rental offer. Excess Construction Charges will be indicated to the Customer ahead of installation and costs shall be agreed by the parties in writing before any work commences.
 
2.13 Where payment is made by the Customer by any other means other than DDM a £50.00 + VAT per month administration charge shall be made and added to the account each month.
 
2.14 This Agreement is strictly subject to credit clearance in respect of the Customer and MTech may forthwith terminate this Agreement if it is not satisfied with such credit clearance in its sole discretion. All required documentation as directed by MTech (or any third-party finance company) must be fully completed by the Customer within 7 days of the date of the Order Form or delivery of Service Equipment, whichever is the earlier.
 
2.15 Subject to satisfactory credit clearance pursuant to clause 2.16, MTech may, at its absolute discretion, agree with the Customer credit terms to apply during this Agreement. The Customer’s credit limit shall be agreed by MTech Director / Managers using various pieces of information including without limitation information received from credit reference agencies, accounts filed at Companies House and the Customer’s payment history with MTech. For the avoidance of doubt MTech shall not be under any obligation to provide the Customer with credit facilities.
 
2.16 MTech reserves the right, in its absolute discretion, to withdraw credit terms extended to the Customer at any time without notice and may require the Customer to make a Service Deposit of up to 3 months average Services Invoice. In the event that the Customer fails to make any Service Deposit within 2 working days of the request by MTech then MTech may suspend the Service.
 
2.17 Where a Deposit payment is required, payment must be received by MTech within 5 working days of the Commencement Date. MTech shall not be liable for any losses (examples including but not limited to engineering rescheduling costs, carrier rescheduling costs, administration of date change costs, and costs for cancelled resource for both MTech and any appointed third-party suppliers) suffered in the event of a delay of such payment of the Deposit.
 
3. USE OF SERVICE

3.1 The Customer shall ensure that the Customer Equipment is in proper working order and complies with all applicable standards and approvals for network connection. Customer Equipment and the Service Equipment must be used in accordance with any published instructions, safety and security procedures applicable to the use of that equipment.
 
3.2 The Customer shall ensure that the Service is not used either by the Customer or any third-party for any fraudulent, criminal, defamatory, offensive, obscene, indecent or abusive purpose (including menacing, nuisance or hoax calls) or so as to constitute a violation or infringement of the rights (including intellectual property rights) of MTech or any third party. The Customer hereby undertakes to comply with all applicable laws, regulations, conditions of entitlement and guidelines and all reasonable instructions of MTech in relation to its use of the Service and the Service Equipment. The Customer shall not use the Service in a manner in which, in MTech’s reasonable opinion, could materially affect the quality of the electronic communications service over a public electronic communication network, including the Service.
 
3.3 MTech shall have the right to recover all reasonable costs incurred in investigation or remedying any fault with the Service or Service Equipment where it is caused by the Customers negligence or default or by the Customer Equipment or where the fault does not lie with the Service or Service Equipment.

3.4 The Customer shall indemnify MTech against any claims or legal proceedings which are bought against MTech or its sub-contractors because the Service is used in breach of the restrictions set out in this clause 3.
 
3.5 The Customer may request changes to features of the Service by completing a change request form. If the Customer wishes to change the type of Service supplied it will be required to separately order such Service and to enter into a new agreement for the supply of that different Service.
 
3.6 Excluding software sold pursuant to the " Telephone System And Maintenance Agreement" section of this Agreement, in the event that MTech or its sub-contractors supply software to the Customer for use in conjunction with the Service, MTech grants the Customer a non-exclusive, non-transferable license for the use of such software for the duration of the Agreement. Except as permitted under law, the Customer is not permitted to copy, de-compile or modify the software, or copy the manuals or Documentation supplied with such software.
 
3.7 For the avoidance of doubt, the Customer has to pay for all Service charges or Call Charges even if the person using the Service did so without the Customer’s knowledge or permission i.e. the person or Company which initiated the access did so using (but not limited to) premises, equipment or facilities or security access codes or knowledge of the Customer, but was not authorised for such usage.
 
3.8 VOIP telephony services support 999 public emergency call services and such calls will be routed to the national emergency call handling agents. However, these services do not operate in the same way as PSTN fixed line or mobile 999 public emergency call services, and connection to such services may not be possible in the event of a service outage caused by loss of end user connectivity to the internet for whatever reason. For clarity, MTech shall not be liable for any failed access to 999 public emergency call services through the VOIP telephony services. In such circumstances the Customer should use their PSTN line to make the emergency call. Furthermore, it may on occasions not be possible for the emergency services personal to identify the Customer’s location and telephone number, so this information should be stated promptly and clearly by the Customer at the start of such a call.
 
3.9 The Customer acknowledges and agrees that:
 
3.9 a) MTech is not and cannot be aware of the extent of any potential losses resulting from any failure by MTech to discharge its obligations under this Agreement; and
3.9 b) the Service cannot be tested in every operating environment so as to produce a Service which is error free or operates without interruption.
 
3.10 MTech does not warrant or represent that the Service shall be uninterrupted or error free or inoperable with third-party software or equipment.
 
3.11 Any warranties given by MTech shall be subject to the Customer using the Service in compliance with this Agreement, and MTech shall not be liable under this clause 3 for, or required to remedy, any problem arising from any defect or error wholly caused by the Customer or any third-party used in connection with the Service.
 
4. TERMINATION

4.1 Without prejudice to their other rights under this Agreement either party has the right to terminate this Agreement forthwith in the event that:
 
4.1 a) the other party is in breach of a material term of this Agreement and, where capable of remedy, fails to remedy that breach within 30 calendar days of written notice to do so; or
4.1 b) a petition for a bankruptcy order is presented or a bankruptcy order is made against the other party, or a receiver is appointed in respect of the other party’s assets or a voluntary arrangement or winding up petition is proposed, presented or approved (other than for the purpose of reconstruction or amalgamation) or if any circumstances arise which entitle the court or creditor to appoint a receiver or administrator or to present a winding-up petition or make a winding up order.
 
4.2 Without prejudice to its other rights, MTech shall have the right forthwith to terminate this Agreement by notice in writing to the Customer in the event that:
 
4.2 a) the Customer fails to make a payment when it becomes due to MTech and remains in default for not less than 14 days after having been notified in writing by MTech to make payment; or
4.2 b) the Customer fails to provide suitable access to the relevant premises for MTech to effect delivery and installation of the Service Equipment or Service within a period of 3 months from the date of receipt of notice that the Service Equipment or Service is available for delivery pursuant to clause 6.2; or
4.2 c) any license or agreement necessary for MTech to provide the Service(s) expires or is cancelled or revoked or is otherwise modified so as to frustrate the purpose of this Agreement; or
4.2 d) a license under which the Customer has the right to operate any part of its communication systems required for the Service(s) is revoked, amended or otherwise ceases to be valid; or
4.2 e) if the Customer arranges for the Service Equipment to be serviced by any party other than MTech; or
4.2 f) if the Customer misuses or abuses the Service Equipment.
 
4.3 In the event of termination by MTech under clause 4.1a), MTech shall be entitled to recover from the Customer all sums due to the date of termination together with any direct losses and expenses incurred by MTech as a result of any breach of this Agreement by the Customer .
 
4.4 Clauses 5, 8 and 16.1 to 16.7 of this Agreement shall survive its termination for any reason whatsoever.
 
4.5 Should this Agreement be terminated by MTech in accordance with clause 4.1a), or where the Customer is in breach of the Agreement or the Customer opts to terminate the Agreement, MTech reserves the right to claim in addition to any Service(s) and Maintenance fees payable for the remaining Minimum Term or Extended Term of this Agreement the sum equal to 30% of the average expected or invoiced monthly Call Charges for the period up to the date of termination multiplied by the number of months remaining of the Minimum Term or Extended Term.

4.6 If this Agreement is terminated by MTech in accordance with clause 4.1a) and decommissioning work is required to be undertaken by MTech, a decommissioning fee (minimum £295.00 plus VAT and a maximum of £1000.00 plus VAT) will be payable by Customer in advance of any work being undertaken.
 
5. LIMIT ATION OF LIABILITY

5.1 The following provisions set out the entire financial liability of MTech (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
 
5.1 a) any breach of the Agreement howsoever arising;
5.1 b) any use made by the Customer of the Service; and
5.1 c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Agreement.
 
5.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
 
5.3 Nothing in this Agreement shall exclude or restrict MTech’s liability for death or personal injury resulting from negligence of MTech or of its employees while performing services pursuant to this Agreement.
 
5.4 Subject to clauses 5.2 and 5.3 MTech shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for loss of profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
 
5.5 In the event of any shortcoming in the Service(s) and the Customer elects to divert traffic to another service provider, MTech will not be responsible for that provider’s fees or charges.
 
5.6 MTech’s liability in contract or tort or otherwise including any liability for negligence howsoever arising out of or in connection with the performance of MTech’s obligations under this Agreement shall be limited to an amount no greater than the Technology Services Invoice(s) paid by the Customer to MTech for the period of 3 months prior to the relevant occurrence from which such liability arose.
 
5.7 MTech shall have no liability whatsoever for the acts, defaults or omissions of the Licensed Operator or Equipment Supplier or third parties that affect the Customer and MTech to fulfil or breach their respective obligations under this Agreement.
 
6. DELIVERY, ACCESS & INSTALLATION

6.1 MTech or its appointed sub-contractors shall deliver and install any Service Equipment required for provision of the Service at the Customer’s premises. MTech shall use its reasonable endeavours to deliver and install the Service Equipment by such date as is ad vised, however any delivery date specified shall be an estimate only. MTech accepts no liability for failure to meet the delivery date. Likewise new telephone numbers cannot be guaranteed until they go live.
 
6.2 On receipt of notice from MTech that the Service Equipment is available for delivery, the Customer shall promptly provide suitable access at the relevant premises for MTech or its delivery agent in order that delivery and installation of the Service Equipment can be effected.
 
6.3 Upon delivery the Customer shall make available to MTech (or MTech’s delivery agent) free of charge such labour and equipment as is required to effect delivery and installation of Service Equipment at the delivery address. Upon completion of delivery the Customer shall be solely responsible for the removal and disposal of all packing cases and other containers in which Service Equipment was delivered and upon completion of installation the Customer sha ll be solely responsible for making good and cleaning the premises.
 
6.4 Unless the Customer notifies MTech in writing of a significant fault with the Service Equipment within 7 days following delivery, the Customer shall be deemed to have accepted the Service Equipment. The Customer agrees that 7 days is a reasonable period for the purpose of inspecting the Service Equipment and testing the same for significant faults. Notwithstanding this clause all rights that are available to the Customer under the provisions of Maintenance for faults in connection with Service Equipment are reserved.
 
6.5 The Customer shall at its own expense in advance of any installation work:
 
6.5 a) obtain all necessary licenses or consents, including consents for any alterations to buildings to allow the installation of the Service Equipment;
6.5 b) provide sufficient approved electricity connection points for the Service Equipment in close proximity to the Service Equipment;
6.5 c) provide an appropriate environment for installation of the Service Equipment in accordance with the requirements notified to it by MTech;
6.5 d) test Customer Equipment, ensure that Customer Equipment is complete and in good working order and ensure that all specifications are not less than the minimum determined by MTech. Upon a date to be notified by MTech, MTech may inspect Customer Equipment at the Customer’s premises in accordance with the terms of this Agreement;
6.5 e) if MTech indicates to the Customer in writing that the Customer Equipment is not suitable for the purpose of MTech supplying and installing the Service Equipment and supplying the Services, take the necessary steps to make Customer Equipment suitable; and
6.5 f) use reasonable endeavours to complete any work notified by MTech at each location within 7 days of notification by MTech and in particular to reflect any of MTech requirements.
 
6.6 MTech may perform repeat inspections until MTech is satisfied that Customer Equipment is suitable for the purpose of MTech supplying the Service Equipment and Services.
 
6.7 The Customer shall be liable for any loss or damage to the Service Equipment except where such damage is due to fair wear and tear or is caused by MTech or anyone acting on MTech’s behalf.
 
6.8 The Customer must grant MTech and its sub -contracts access to its premises at any agreed time during 08.00 to 18.00 Monday to Friday (excluding public holidays) (“Working Hours”) and MTech may, on reasonable notice, require access to the Customer’s premises outside Working Hours. Any work carried out by MTech outside the Working Hours shall be subject to additional Charges. The Customer may be required to designate a named individual to be available if MTech or its sub-contractors require access to the premises. If no such person is available or is not present at the premises then MTech shall have no liability to the Customer for the non -performance of its obligations under this Agreement.
 
7. CUSTOMER’S OBLIGATIONS & RESPONSIBILITIES

7.1 The Customer shall co-operate with MTech to (in each case insofar as is reasonably necessary to enable MTech to effectively carry out its obligations under this Agreement):
 
7.1 a) make available to MTech free of charge such computer and communications facilities, office facilities and services and suitable office space as requested and obtain all access rights required by MTech;
7.1 b) ensure that its employees or other independent contractors co -operate reasonably with MTech and its employees;
7.1 c) promptly furnish MTech with such information (including without limitation IP addresses) and documents as requested;
7.1 d) pay all Charges properly invoiced by The Techno logy Group;
7.1 e) provide a suitable and safe working environment and take all reasonable steps to ensure the health and safety of MTech employees, agents or independent contractors (subject to such employees, agents or independent contract ors complying with any Customer health and safety policy or site regulation notified in writing by Customer). MTech shall not be liable for any breach of this Agreement which arises as a result of conflict between any such policy or site regulation and this Agreement;
7.1 f) ensure that any IP Rights which MTech is required to use or modify in order to supply the Service is/are either proprietary to the Customer or properly licensed to the Customer and that MTech is properly authorised to use or modify the IP Rights;
7.1 g) ensure that adequate electrical power is supplied to the Service Equipment;
7.1 h) store safely any telecoms Service Equipment and to indemnify MTech for the value of the Service Equipment in the event of theft, loss or damage, however caused, prior and post to installation & until tit le of equipment passes to the Customer on full payment, or until the Service Equipment is returned to MTech at the end of the finance agreement;
7.1 i) keep the external surfaces of the Service Equipment clean and in good condition;
7.1 j) operate the Service Equipment strictly in accordance with the Documentation and ensure that only competent and trained persons operate the Service Equipment;
7.1 k) not make any addition, modification or adjustment to the Service Equipment without the prior written consent of MTech;
7.1 l) use only media and consumables approved by the manufacturer or by MTech in writing ( MTech’s approval not to be unreasonably withheld); and
7.1 m) ensure that only MTech’s personnel are permitted to maintain, service or carry out adjustments to the Service Equipment.
 
7.2 The Customer shall:
 
7.2 a) indemnify MTech against all reasonable costs, claims, demands, liabilities, expenses, damages or losses (including consequential losses, loss of profit and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with the Customer’s negligence, default or breach of these Terms. This indemnity shall be capped at the total value of all Services supplied per month, multiplied by the months in the Minimum Term or Extended Term of the Agreement, less any sums paid to date by the Customer to MTech at the point of claim.
7.2 b) keep the Service Equipment in its possession and in the United Kingdom and shall not move it without MTech’s prior written consent which shall not be unreasonably withheld. MTech shall charge for such a move if the Customer fails to notify MTech; and
7.2 c) arrange, at its own expense, for any provisions by their chosen network provider, which may be necessary for the installation and operation of the Service Equipment or Service by MTech.
 
7.3 The Customer is solely responsible for maintaining Customer Equipment in order that the Service Equipment functions in accordance with the Documentation.
 
7.4 The Customer shall not, without the prior written consent of MTech, at any time from the date of the Agreement to the expiry of six months after the completion of the Services, solicit or entice away from MTech or employ or attempt to employ any person who is, or has been, engaged as an employee or sub -contractor of MTech.
 
8. RISK AND OWNERSHIP OF EQUIPMENT

8.1 It is the Customer’s sole responsibility to agree appropriate arrangements for third-party finance as required by the Customer.
8.2 Risk in Service Equipment shall pass to the Customer upon delivery.
8.3 In respect of Service Equipment that is leased to the Customer, the Service Equipment shall remain the property of MTech or any third-party finance company to which MTech has transferred ownership (“Owner”) at all times and the Customer shall deliver up the Equipment to MTech (or its third-party finance company) upon termination or expiry of this Agreement. In the event of a failure by the Customer to do so, MTech (or the Owner) shall (without prejudice to any other legal remedies it may have) be entitled to enter upon the delivery address or any other premises under the Customer’s control (without notice to the Customer) and remove the Service Equipment. With effect from delivery the Customer shall, upon request by MTech, insure the Service Equipment for its full replacement value with such insurance company as MTech shall approve (such approval not to be unreasonably withheld) and shall provide a copy of the insurance certificate to MTech which certificate shall have MTech (or its third-party finance company) endorsed thereon as loss payee.
8.4 In respect of Service Equipment sold to the Customer, tit le to Service Equipment shall not pass to the Customer until the date that Charges (and any additional sums payable by the Customer pursuant to this Agreement) and VAT thereon have been paid in full to MTech.
8.5 Except in respect of Service Equipment to which t it le has passed to the Customer pursuant to this Agreement, the Customer shall not be entitled to sell, transfer, lease, charge, assign by way of security or otherwise deal in or encumber Service Equipment and the relationship between MTech and Customer in respect of Service Equipment including any proceeds of sale or other consideration therefore shall be a fiduciary one.
8.6 If the Customer fails to effect payment in full of all sums due hereunder by the due date then MTech (without prejudice to any other legal remedies it may have) shall 14 days after the due date be entitled to enter upon the delivery address or any other premises under the Customer’s control (without notice to the Customer) and remove the Service Equipment.
8.7 If in breach of this clause 8 the Customer sells (i) Service Equipment that is leased, or (ii) Service Equipment that is sold prior to title passing to the Customer then any proceeds of sale in respect thereof and all rights arising under or in respect of said sale shall be held (in the case of the proceeds of sale in a separate account) by the Customer as trustee for MTech (or the Owner).
 
9. IP RIGHTS

9.1 The Customer acknowledges that any and all of the IP Rights subsisting in or used in connection with the deliverables, Service Equipment and Services shall be and shall remain the sole property of MTech or such other party as may be identified therein or thereon and the Customer shall not at any time dispute such ownership.
 
9.2 In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, the Customer acknowledges that the same shall be the property of MTech unless otherwise agreed in writing by MTech.
 
10. WARRANTIES AND LIABILITY

10.1 MTech warrants that the Service Equipment will be in good working order at the time of delivery and will be free from defects in materials and workmanship for a period of 12 months from the date of delivery.
 
10.2 MTech shall be under no liability under the warranty in clause 10.1 in respect of any defect arising from excessive wear and tear, misuse, abuse, the use of unsuitable consumables or failure to follow written instructions relating to the Service Equipment, or any alteration or repair to the Service Equipment without MTech’s approval.
 
10.3 The Customer agrees that:
 
10.3a) MTech where instructed by the Customer may order certain goods and services from third parties on behalf of the Customer in connection with this Agreement; and
10.3b) MTech shall not be liable in respect of any failure by such third parties to supply such goods and services.
 
11. SUSPENSION OF SERVICE
11.1 Without prejudice to its right to suspend provision of the Service pursuant to clause 2 , MTech may at its sole discretion upon giving the Customer not less than 7 days written notice, elect to suspend forthwith provision of the Service until further notice without compensation in the event that:
 
11.1a) the Customer is in breach of a material term of this Agreement and fails to remedy such breach within 14 days of being notified in writing to do so by MTech ; or
11.1b) MTech is obliged to comply with an order, instruction or request of the Government, an emergency services organisation or other competent administrative authority requiring such suspension; or
11.1c) any industry license or agreement necessary for Th e Technology Group to provide the Service(s) expires, is suspended, cancelled or revoked .
 
12. DURATION
12.1 The term of this Agreement in relation to:
 
12.1a) the Service and Maintenance is for a minimum period as defined initially for the Minimum Term; and
12.1 b) at the end of the Minimum Term (or an Extended Term), this Agreement will be automatically renewed for an Extended Term unless it is terminated by either party giving not less than 3 months' written notice of termination to the other or unless this Agreement is terminated in accordance with clause 4 (Termination).
 
 
13. GENERAL

13.1 This Agreement may not be assigned in whole, or in part, by the Customer without the prior written consent of MTech, such consent not to be unreasonably withheld. MTech shall have the right to assign or subcontract all or any of its rights and obligations under this Agreement to any third-party without notification to or consent from the Customer.
 
13.2 This Agreement contains the entire understanding of the parties to the exclusion, save in the case of fraudulent misstatement or misrepresentation, of any and all prior or collateral agreement, representation or understanding whether oral or written and may only be amended by agreement in writing by duly authorised representatives of both parties.
 
13.3 MTech reserves the right to vary this Agreement by giving the Customer not less than 30 days' written notice at any time. The reasons for such variation may include, without limitation, a change in the law or industry practice, a change to the cost of providing the Service, a change in the way MTech does business (including the introduction of new technology) or any other valid reason.
 
13.4 Except as expressly provided herein this Agreement does not constitute either party as the agent or legal representative of the other party and does not create a partnership or joint venture between MTech and the Customer. This Agreement is not intended to confer any rights of any kind upon a third party.
 
13.5 Any notice, invoice or other document which may be delivered by MTech under this Agreement shall be deemed to have been duly delivered if left at or sent by post to any of: (i) an address notified to MTech in writing by the Customer as an address to which notices, invoices or other documents may be sent; or (ii) the Customer's usual last known place of abode or business; or (iii) if the Customer is a limited company, its registered office.
 
13.6 Failure by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of that right or of any other right on any occasion.
 
13.7 If at any time any term or provision in this Agreement shall be held to be unlawful, invalid or unenforceable, in whole or in part the legality, validity or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
 
13.8 The Customer agrees to indemnify MTech against any breach by the Customer of data protection legislation including the Data Protection Act 19 98 unless the Customer has given MTech adequate written warning of any potential or actual breach and MTech has acted contrary to that warning.
 
13.9 The Customer acknowledges that MTech may record calls originating from or received by any of its premises including but not limited to calls originating from or made to mobile phones of any employee or MTech Director / Managers. MTech may disclose any recordings made to the extent such recordings are required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.
 
13.10 This Agreement shall be governed by and construed and interpreted in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts.
 
14. SERVICE LEVEL

14.1 Unless otherwise stated, whilst MTech aims to meet an 8 hour target response time during business hours, such response time may not be possible if there is damage to cabling (whether or not underground) or if replacement of supplied routers is required. MTech or its suppliers do not accept liability for any loss or damage which may be suffered due to a third-party or any other cause beyond its reasonable control.
 
14.2 Where the Customer logs a fault and MTech incurs expenses arising from Customer error, abortive site visits, or site visits during which the supplied Service is found not to be at fault, then any resulting expenses must be reimbursed by the Customer and a call-out fee of £199.00 + VAT shall be payable by the Customer to MTech.
 
14.3 MTech requires the Customer (or end user) to provide any information needed to help MTech or its suppliers investigate a fault in connection with the Service or Service Equipment. This may require the Customer or third-party supplier responsible for the Customer Equipment to give MTech detailed diagnostics from the Customer Equipment to assist with identifying any issues. Although MTech and its suppliers do not specify particular devices for Customer use, the Customer shall ensure that the relevant Customer Equipment meets the specification notified to the Customer by MTech.
 
15. EXCLUSIONS
15.1 The Service does not include any work made necessary by the following (for which MTech may make additional Charges at rates as shown for Additional Work in 2.2):
 
15.1a) fault or defect occurring in any equipment not supplied and/ or supported by MTech including without limitation network line faults and faults in BT or other third-party equipment and facilities;
15.1b) use of Service Equipment otherwise than in accordance with clau
15.1c) accident, fault, act or omission of any person other than MTech or third parties appointed by MTech;
15.1d) use of Service Equipment in excess of any maximum usage specified by the manufacturer;
15.1e) failure of electrical power (including power surges or power cuts), air conditioning, humidity or other environmental controls;
15.1f) electrical work external to any Service Equipment;
15.1g) damage by vandalism, f ire, water or adverse weather conditions;
15.1h) movement or relocation of the Service Equipment not performed by or on behalf of MTech;
15.1i) furnishing of the Service Equipment with accessories or attachments, painting or finishing the Service Equipment or removing accessories or attachments;
15.1j) breach of the Customer obligations in this Agreement;
15.1k) hardware, accessories, attachments, machines, systems or other devices not referred to in an Order Form;
15.1l) rectification of lost or corrupted data arising for any reason other than MTech’s own negligence;
15.1m) Maintenance rendered more difficult because of any changes, alterations, additions, modifications or variations to Customer Equipment
15.1n) a failure of the Customer to maintain comprehensive and fully operational back -up of all Customer data; and
15.1 o) diagnosis and/ or rectification of problems not associated with Service Equipment supported by MTech under this Agreement.
 
15.2 MTech will install software and applications to the Customer’s LAN/WAN infrastructure, it will remain the Customer’s responsibility to ensure that it is available and complete at the time of MTech’s installation and the Customer will be responsible to ensure the network is maintained in order that all applications and software are able to run at their optimum level. Any faults found to be a result of the network will be charged at up to £750.00 + VAT per day.
 
15.3 Any failure in the programme of least cost routing must be reported to MTech within 24 hours of programming. MTech will supply the Customer with test numbers at the Customer's request for the Customer to prove the programming.
 
16. CONFIDENTIAL INFORMATION
16.1 All information, data, drawings, specifications, documentation, software listings, source or object code which MTech may have imparted and may from time to time impart to the Customer relating to this Agreement in whatever media is proprietary and confidential. The Customer hereby agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after expiry or termination of this Agreement disclose the same whether directly or indirectly to any third-party without the prior written consent of MTech.
 
16.2 The Customer shall keep in strict confidence all Confidential Information that have been disclosed to the Customer by The Technology Group or its agents, and any other Confidential Information concerning MTech's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer's obligations to MTech, and shall ensure that such employees, agents or sub -contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
 
16.3 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
 
16.3 a) is or becomes publicly known other than through any act or omission of the receiving party; or
16.3 b) was in the other party's lawful possession before the disclosure; or
16.3 c) is lawfully disclosed to the receiving party by a third-party without restriction on disclosure; or
16.3 d) is independently developed by the receiving party, which independent development can be shown by written evidence.
 
16.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 16.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
 
16.5 Subject to clause 16.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
 
16.6 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
 
16.7 The above provision of this clause 16. shall survive termination of the Agreement, however arising.
 
16.8 The foregoing provisions shall not prevent the disclosure or use by the Customer of any information which is or hereafter through no fault of the Customer becomes public knowledge or to the extent permitted by law.
 
16.9 Where this Agreement has been instigated and/ or concluded with the involvement of an appointed Partner, the Customer hereby agrees that MTech may disclose details of the Customer’s billing information to the relevant Partner for the purpose of managing the Customer’s account until such time as the Customer has expressly informed MTech in writing that it no longer consents to the disclosure of such information to the relevant Partner.
 
17. FORCE MAJEURE
Neither party will be under any liability to the other for, damage, delay or any other matters of that nature whatsoever arising out of any failure by a third-party supplier, war, rebellion, civil commotion, strikes, lock outs and industrial disputes, f ire, explosion, earthquake, acts of God, flood, drought, or bad weather or the requisitioning or other act or order by any Government department, council or other constituted body (“Force Majeure”), provided always that both parties will use all reasonable endeavours (but without an obligation to incur cost) to minimise the period of disruption caused by the Force Majeure.
 
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