BT Business Direct Conditions of Supply

• 1.1 The Contract shall start on the Commencement Date.
• 1.2 Where:
• • (a) the Customer Finance Agreement is not executed; or
  • (b) the Customer Finance Agreement is terminated or any offer made by the Company is withdrawn (in both cases for whatever reason) prior to BT Business Direct’s receipt of payment in respect of the Equipment or services (if any); or
  • (c) the Customer delays delivery of the Equipment and the delay continues for more than ten (10) Working Days; or
• (d) the Customer does not sign an Acceptance Certificate in accordance with clause 3; or
• (e) the Customer uses the Equipment before signing the Acceptance Certificate; or
• (f) the Customer is in breach of clause 4,
• the Conditions will, at BT Business Direct’s discretion, be replaced by BT Business Direct’s Conditions of Sale and the Customer will pay the charges in the Order Acknowledgement directly to BT Business Direct.

• 2.1 Subject to clause 1.2 the Equipment and related services are provided under the terms of the Contract. Any other services are provided under the BT Business Direct Conditions of Sale or the relevant BT terms and conditions for those services, the payment terms of which may be amended by the Contract.
• 2.2 Unless otherwise agreed in writing, BT Business Direct will deliver the Equipment to at the Customer’s delivery address(es) set out in the Order Acknowledgement. Delivery and performance of the services (if any) will usually be made during Working Hours. Where the Customer requests delivery or performance outside Working Hours BT Business Direct may apply additional charges reasonably incurred. BT Business Direct will inform the Customer in writing of any additional charges, which the Customer will pay directly to BT Business Direct.
• 2.3 BT Business Direct will try to deliver the Equipment referenced in the Order Acknowledgement by the date(s) agreed with the Customer. BT Business Direct reserves the right to make delivery in multiple consignments. Unless stated explicitly by BT Business Direct any delivery date(s) given or shown on the Order Acknowledgement is an estimate only.
• 2.4 The Customer will take delivery of and sign for the Equipment on the date(s) of delivery and will inform BT Business Direct on the same day if:
  • (a) the quantity of packages delivered is different from the quantity shown on the delivery note; and
  • (b) there is any damage to the packages or boxes.
• 2.5 The Customer will inform BT Business Direct in writing of any damage to any of the Equipment or any other discrepancy in the Equipment delivered, other than damage caused by any act or omission by the Customer, within five (5) Working Days from the date of delivery or collection. Such notification should include model and part numbers of affected Equipment and identity of any software application.
• 2.6 The Customer will follow BT Business Direct’s instructions when returning Equipment about which it has informed BT Business Direct as set out in clause 2.5. The Customer will ensure that Equipment is returned in “as new” condition, in its original packaging and that the seal is not broken for any Software, unless the Software is faulty. BT Business Direct may at its option either reject any returns that are not made in accordance with its instructions or that are incomplete, or charge a restocking fee.
• 2.7 BT Business Direct’s entire liability for incomplete or damaged Equipment will be to replace the Equipment at its own expense. BT Business Direct will have no further liability to the Customer where the Customer has not informed BT Business Direct as set out in clause 2.5.
• 2.8 If the Customer delays delivery or collection of the Equipment, BT Business Direct may claim a reasonable extension to any date agreed under clause 2.3. In addition BT Business Direct may charge a reasonable amount as a storage charge for holding the Equipment as a result of the Customer’s delay, which the Customer will pay directly to BT Business Direct.
• 2.9 The Customer and BT Business Direct will meet each other’s reasonable safety and security requirements when on the Site. If the Customer or BT Business Direct damages the other’s equipment it must pay, subject to clause 10, for any repair or replacement needed. This does not apply where the damage results from normal use.

• 3.1 Acceptance of the Equipment by the Customer in this will take place on the earlier of:
• • (a) the date the Customer signs the Acceptance Certificate; or
  • (b) the date when the Customer takes delivery of the Equipment.
  • The Customer agrees that use of the Equipment before the Acceptance Certificate is signed may affect the Customer Finance Agreement. Where the Company requires an Acceptance Certificate but the Customer does not sign such Acceptance Certificate in a timely manner, notwithstanding the Customer has used the Equipment, clause 1.2 will apply.
• 3.2 Acceptance will not be prevented by minor faults that do not affect the Equipment’s performance, but BT Business Direct will fix those minor faults within a reasonable time.
• 3.3 Without prejudice to clauses 2.4 and 2.5, the Customer will sign any Acceptance Certificate required by BT Business Direct or the Company to give effect to such acceptance.
• 3.4 Subject to clause 6, BT Business Direct will have no further liability to the Customer where the Customer has accepted the Equipment.

• 4.1 Until BT Business Direct has received payment and title in the Equipment has passed to the Company, the Customer will:
• (a) keep the Equipment safe and only use it in accordance with any instructions BT Business Direct may give;
• (b) not move the Equipment or any part of it from the Site;
• (c) ensure that the Equipment is kept without risk to health;
• (d) only use or allow the Equipment to be used for any purpose for which it is designed;
• (e) not make any alterations or attachments to the Equipment without BT Business Direct’s prior written consent. If BT Business Direct gives its consent, any alterations or attachments will become part of the Equipment;
• (f) not sell, charge, assign, transfer or dispose of or part with possession of the Equipment or any part of it;
• (g) not allow any lien, encumbrance or security interest over the Equipment, nor pledge the credit of BT Business Direct for the repair of the Equipment or otherwise;
• (h) not claim to be owner of the Equipment and ensure that the owner of the Site will not claim ownership of the Equipment, even if the Equipment is fixed to the Site;
• (i) indemnify BT Business Direct against all claims and proceedings arising from the Customer’s use of the Equipment or if the Equipment is stolen or damaged as a result of the Customer’s negligence or gross misconduct. The Customer will keep BT Business Direct informed of anything which may affect the rights of BT Business Direct, or involve BT Business Direct in any proceedings, loss or liability.
• 4.2 The Customer is responsible for the disposal of all packaging.

• 5.1 Where the Contract includes delivery, risk passes to the Customer on delivery of the Equipment (unless otherwise specified in the Customer Finance Agreement), but the Customer will not be liable for any loss or damage that is caused by BT Business Direct’s negligence.
• 5.2 Unless otherwise agreed in writing, the Customer acknowledges that title in the Equipment (except for the Intellectual Property Rights) will pass to the Company on receipt by BT Business Direct of payment of the relevant charges as detailed in the Order Acknowledgement.
• 5.3 Until BT Business Direct has received payment and title in the Equipment has passed to the Company:
• (a) the Equipment will appear in the Customer’s books in the name of BT Business Direct; and
• (b) in the event of its Bankruptcy or threatened seizure of the Equipment, the Customer will immediately notify BT Business Direct and BT Business Direct may take action to repossess the Equipment. The Customer will also inform interested third parties of BT Business Direct’s ownership of the Equipment.

• 6.1 BT Business Direct shall pass on to the Customer the benefits of any warranty or guarantee that it has obtained from its supplier on the same terms, provided that:
• • (a) the Equipment has been properly kept, used and maintained in strict accordance with the Equipment Manufacturer’s or BT Business Direct’s instructions, if any, and has not been modified except with BT Business Direct’s written consent;
  • (b) the fault is not due to accidental or wilful damage, interference with or maintenance of Equipment by persons other than BT Business Direct or persons authorised by BT Business Direct;
  • (c) where Equipment has been manufactured to the Customer’s design, the fault is not due to faulty design by the Customer; and
  • (d) the Customer has accepted and paid in full for the Equipment.
• 6.2 The Guarantee does not cover fair wear and tear.
• 6.3 Unless otherwise agreed in writing the Customer will normally be required to return faulty Equipment to BT Business Direct, (by arrangement with the Equipment Manufacturer and the Customer, where necessary).
• 6.4 f the Customer reports a fault and BT Business Direct finds there is none or that the Customer has caused the fault or that the fault is not covered by the Warranty, BT Business Direct may apply a charge.
• 6.5 Except where the Customer relies on BT Business Direct’s written advice, it is the Customer’s responsibility to satisfy itself as to the suitability of the Equipment for its needs.
• 6.6 BT Business Direct does not warrant that the Software supplied under the Contract will be free of all faults or that its use will be uninterrupted, but BT Business Direct will pass on to the Customer the benefit of any warranty or guarantee that it has obtained from the Software supplier on the same terms.

• 7.1 Subject to clause 1.2, the charges for the Equipment and services are as detailed in the Order Acknowledgement. Where such charges are covered by the Customer Finance Agreement they are shown for reference purposes only. The applicable charges will be paid by the Customer to the Company under the Customer Finance Agreement. The charges are as detailed in the Order Acknowledgement and unless otherwise set out, charges:
• • (a) include delivery within the UK.
  • (b) are exclusive of VAT which is chargeable at the applicable rate.
• 7.2 BT Business Direct will send invoices for any charges arising under the Contract that are not covered by the Customer Finance Agreement and any additional charges under clauses 1.2, 2.2 and 2.8 to the address advised by the Customer to BT Business Direct.
• 7.3 Payment of any invoices issued under clause 7.2 is due within thirty (30) days of the date of the invoice and clauses 7.5 to 7.7 will only apply to such invoices.
• 7.4 As part of its credit management procedures BT Business Direct may at any time:
• • (a) require the Customer to pay a deposit or provide a guarantee as security for payment of future invoices by the means requested by BT Business Direct; and/or
  • (b) check the Customer’s details with a fraud prevention/credit vetting agency. If the Customer provides information that BT Business Direct reasonably believe to be false or incorrect and BT Business Direct suspects fraud, then BT Business Direct may record this information with a fraud prevention agency. BT Business Direct and other organisations may use and search this information.

Disputed Invoices

• 7.5 If the Customer disputes any charge on an invoice the Customer will notify BT Business Direct in writing within fourteen (14) days of the date of the invoice with all relevant information. Where the disputed amount is:
• • (a) less than 5% of the total invoice, the Customer will pay the full amount of the invoice; or
  • (b) more than 5% of the total invoice, the Customer must pay the amount not in dispute.
• Any disputes will be resolved promptly and the resolved amount if any is payable immediately. In the event that a dispute in an invoice is not raised within the aforementioned 14 day period, then the Customer is obliged to pay that invoice in full.

Late Payment

• 7.6 If BT Business Direct does not receive payment by the due date, BT Business Direct may charge the Customer daily interest on late payments at a per annum rate equal to 7% above the base lending rate of the European Central Bank for the period beginning on the date on which payment due and ending on the date on which payment is made.
  If the Customer does not pay an invoice, BT Business Direct may instruct a debt collection agency to collect payment (including any interest) on its behalf. If BT Business Direct instructs an agency, the Customer must pay BT Business Direct an additional amount sum to cover the reasonable costs incurred by BT Business Direct in instructing the debt collection agency.
• 7.7 If any amount owed by the Customer to BT Business Direct under the Contract or any contract with BT Business Direct is not paid by the due date, BT Business Direct may deduct this amount from any payment or credit due to the Customer under the Contract or any other contract with BT Business Direct.

8.1 The Contract cannot be varied without the written agreement of the parties, except that BT Business Direct may make minor changes to the specification of the Equipment which do not affect the performance.

• 9.1 Either party may end the Contract at any time with immediate effect if the other party:
• • (a) materially breaches the Contract and, if the breach is capable of remedy, fails to put right the breach within a reasonable time of being asked to do so by the party not in breach; or
  • (b) suffers Bankruptcy.
• 9.2 In the event of termination of the Contract, or termination or expiry of the Customer Finance Agreement, BT Business Direct, at its discretion, may continue to provide the Equipment and clause 1.2 will apply.

• 10.1 BT Business Direct accepts liability as set out in this clause in relation to the Equipment and related services.
• 10.2 Neither the Customer nor BT Business Direct excludes or restricts in any way its liability for death or personal injury caused by its negligence or the negligence of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation or to any extent not permitted by law.
• 10.3 Subject to clauses 10.2 and 10.4, the Customer and BT Business Direct’s accept liability to the other in contract, tort (including negligence) breach of statutory duty or otherwise for direct loss to a value not ot exceed:
• • (a) £25,000 for loss of or damage to physical property; and
  • (b) for all other loss or damage, the greater of either
  • (i)£25,000;
  • (ii)125% of the amounts paid by the Customer under the Contract.
• 11.4 Neither the Customer nor BT Business Direct shall be liable to the other, whether in contract, tort, under statute or otherwise (including in each case negligence) of any of the following types of loss or damage arising under or in relation to the Contract or any part of it:
• • (a) any loss of profit, business contracts, loss of revenue, loss of anticipated savings, loss of opportunity, loss of business, wasted expenditure, loss from business interruption, loss of contracts, loss from expenditure of time by managers and employees, liability to third parties, pecuniary losses arising from goodwill, or loss of or damage to goodwill; and/or
  • (b) any loss or corruption or destruction of data; and/or
  • (c) any special, indirect or consequential loss or damage whatsoever.
    whether or not that party was advised in advance of the possibility of such loss or damage.
• 11.5 Clause 10 will not apply to the Customer’s liability to pay (without set off) the charges.
• 11.6 The limitations of liability referred to in clauses 10.3 and 10.4 will not apply in respect of claims brought under clause 4.1 (i).
• 11.7 Each part of this clause 10 operates separately. If any part of the clause is held by a Court to be unreasonable or inapplicable the rest of the clause will continue to apply.

Intellectual Property

• 11.1 Except as expressly set out in the Contract, the Customer and BT Business Direct do not acquire any right or licences to the other’s Intellectual Property Rights.
• 11.2 If the Customer is supplied with Software licensed by third parties who require the Customer to accept their terms of use, the Customer must keep to those terms.
• 11.3 Except as permitted by applicable law or as expressly permitted under the Contract the Customer must not, without BT Business Direct’s prior written consent, copy, de-compile or modify any Software, copy manuals or documentation or knowingly permit anyone else to do so.

Confidentiality

• 11.4 Except to the extent any disclosure is required by law the Customer and BT Business Direct will keep in confidence all information, whether written or oral, of a confidential nature obtained under or in connection with the Contract. The Customer and BT Business Direct will not, without the consent of the other, disclose such information to any person other than:
• • (a) their employees or employees of their Group Companies or professional advisers who need the information in order for the Customer of BT Business Direct to fulfil its obligations under the Contract; or
  • (b) in the case of the Customer, its employees to the extent necessary to use the Equipment; or
  • (c) in the case of BT Business Direct, the employees of their subcontractors of its suppliers who need the information in order for BT Business Direct to fulfil its obligations under the Contract.
• Information that BT Business Direct holds about the Customer may be used for fraud prevention and credit vetting purposes and this may include BT Business Direct sharing such information with third party companies.
• 11.5 Information will not be treated as confidential if it is:
• • (a) in the public domain other than through a breach of the Contract; or
  • (b) lawfully in the possession of the Customer or BT Business Direct before disclosure has taken place; or
  • (c) obtained from a third person who is free to disclose it; or
  • (d) developed independently by someone without access to or knowledge of the information.
• 11.6 If either the Customer or BT Business Direct receives a demand from a lawful authority, regulatory authority or court to disclose any Confidential
• 11.7 Where the Freedom of Information Act 2000 applies to the Customer and the Customer receives a request under the Act that includes any information held by the Customer that was provided by BT Business Direct in connection with the Contract the Customer will:
• • (a) notify BT Business Direct immediately of the request; and
  • (b) give BT Business Direct at least five (5) Working Days to make representations.

12.1 Matters Beyond Reasonable Control

• (a) If the Customer or BT Business Direct is unable to perform, or prevented, hindered or delayed from performing any obligation under the Contract because of something beyond its reasonable control including: act of God, natural disaster, lightning, flood, subsidence, earthquake, weather conditions, epidemic, pandemic, fire, explosion, war, civil disorder, acts of terrorism, something beyond the reasonable control of its suppliers, industrial disputes, acts or omissions of local or central government or other competent authorities, , change of law or any other cause whether similar or dissimilar that is outside its reasonable control, it will have no liability to the other for any resulting failure, delay, defect or omission in performing the Contract.
• (b) If any of the events detailed in clause 12.1(a) continue for more than three months BT Business Direct will not be liable for failure to supply or delay in supplying the Equipment if legal or regulatory restrictions are imposed that prevent BT Business Direct from supplying the Equipment.

12.2 Escalation and Dispute Resolution

• (a) The Customer and BT Business will try to work together to resolve any dispute that might arise. If this does not resolve the matter, it may be referred to the relevant dispute resolution service as set out in clause 12.2(b).
• (b) Any dispute must be raised in writing with the Customer’s or BT Business Direct’s representative as appropriate giving all relevant details including the nature and extent of the dispute. The Customer and BT Business Direct will use reasonable endeavours to resolve any dispute as follows:
• • (i) a dispute which has not been resolved by the Customer’s or BT Business Direct’s representative within fourteen (14) days of being raised may be referred by the Customer or BT Business Direct to the first level by written notice to the other; and
  • (ii) if the dispute is not resolved at the first level within fourteen (14) days of referral, the Customer or BT Business Direct may refer the dispute to the second level by written notice to the other.
  • The Customer’s and BT Business Direct’s representatives at the first and second levels will be as advised by the parties from time to time.
• (c) Nothing in this clause 12.2 will prevent the Customer or BT Business Direct from exercising any rights and remedies that may be available in respect of any breach of the provisions of the Contract.

12.3 Transfer of Rights and Obligations

• The Customer and BT Business Direct may not transfer any of their rights or obligations under the Contract without the written consent of the other, except that:
• • (a) the Customer may transfer its rights or obligations or both to a Group Company with the written consent of BT Business Direct, such consent not to be unreasonably withheld or delayed; and
  • (b) BT Business Direct may transfer its rights or obligations or both to a Group Company without consent provided that it notifies the Customer that it has done so.

12.4 Severability

• If any term of the Contract is held invalid, illegal or unenforceable by any court of competent jurisdiction, it will be severed and the remaining terms will continue in full force as if the Contract had been made without the invalid, illegal or unenforceable terms.

12.5 Survival

• Clauses 7.6, 7.6, 10 and 11.4 to 11.7 will survive the termination or expiry of the Contract for two (2) years.

12.6 Entire Agreement

• (a) The Contract contains the entire agreement between the Customer and BT Business Direct and supersedes all previous written or oral agreements content.
• (b) The Customer and BT Business Direct each agree that: (i) they have not been induced to enter into the Contract by nor have they relied upon, any statement, representation, warranty or other assurance not expressly incorporated; and (ii) by entering into this Contract their only rights or remedies (whether in tort, under statute or otherwise) in respect of any statements, warranty or other assurance are for breach of the Contract and that all other rights and remedies are expressly excluded.
• (c) The terms of clauses 12.6(a) and 12.6(b) will not affect the rights or remedies of the Customer or BT Business Direct fraudulent misrepresentation.
• (d) If this Contract contains any obvious error, this Contract will be varied to reflect the true intent of the parties.

12.7 Waiver

• A failure or delay by the Customer or BT Business Direct to exercise any right or act upon a breach under the Contract will not be a waiver of that right or breach. If the Customer or BT Business Direct waives a right or breach of the Contract, that waiver is limited to the particular right or breach.

12.8 Rights of Third Parties

• The Contract does not create any right enforceable by any party who is not the Customer or BT Business Direct (a “Third Party”) under the Contract (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a Third Party which exists or is available apart from that Act.

12.9 Notices

• (a) Notices given under the Contract must be in writing and delivered to the following addresses:
• • (i) to BT Business Direct at the address shown on the invoice or any address which BT provides to the Customer for this purpose; or
  • (ii) to the Customer at the address to which the Customer asks BT Business Direct to send invoices, the address of the Site, the Customer’s email address or, if the Customer is a limited company, its registered office.
• (b) The Customer must inform BT Business Direct immediately if there is any change to any of the contact information the Customer provided to BT Business Direct.

12.10 Law and Jurisdiction

• The Contract is governed by the law of England and Wales and is subject to the non-exclusive jurisdiction of the English courts.

12.11 Data Protection

• The Customer and BT Business Direct will comply with their respective obligations under the Data Protection Act 1998 and any data protection, privacy or similar laws that apply to any personal data processed in connection with the Contract. The Customer and BT Business Direct will provide such help and co-operation as is reasonably necessary or requested by the other to enable compliance with this clause 12.11.

12.12 Customer’s Instructions

• BT Business Direct may take instructions and receive acknowledgement for delivery of the Equipment from a party whom it thinks, with good reason, is acting with the Customer’s permission.

12.13 Export Control

• The parties acknowledge that Equipment, software, and technical information (including, but not limited to, any service, technical assistance and training) provided under the Contract may be subject to export laws and regulations of other countries, and any use or transfer of the Equipment, software, and technical information must be in compliance with all applicable regulations and international trade sanctions. The parties will not use, distribute, transfer or transmit the Equipment, software, or technical information (even if incorporated into other products) except in compliance with all applicable export regulations. If requested by either party, the other party also agrees to sign written assurances and other export-related documents as may be required to comply with all applicable export regulations.

12.14 WEEE Regulations

• The Customer is responsible pursuant to Regulation 9 of the Waste Electrical and Electronic Equipment Regulations 2006 (“the WEEE Regulations”) for the costs of collection, treatment, recovery, recycling and environmentally sound disposal of any equipment supplied under the Contract which has become waste electrical and electronic equipment (“WEEE”). The Customer and BT Business Direct acknowledge that for the purposes of Regulation 9 this clause 12.14 is an agreement stipulating other financing arrangements for the collection, treatment, recovery, recycling and environmentally sound disposal of WEEE. The Customer is responsible for any information recording or reporting obligations imposed by the WEEE Regulations. The Customer will indemnify and hold harmless BT Business Direct against all losses, costs, damages, expenses, liabilities and claims caused to and made that are caused to and made against BT Business Direct by a third party which would not have been caused or made had the Customer fulfilled its express or implied obligations under this clause 12.14 or in connection with the WEEE Regulations. BT Business Direct will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings.

13.1 In the Contract the following terms have the meanings shown next to them: