Sales Terms & Conditions
“Axscend Ltd” means Axscend Limited UK Company, Registration Number: 4275454.
“Customer” means the person or body corporate detailed overleaf.
“Charges” means “Rental Charges”, “Data Charges” and “Other Charges”.
“Rental Charges” means a fixed monthly recurring rental charge for the use of any Hardware (Mobile Unit) and/or Network Services used in connection with the use of the service.
“Initial Period” means the minimum period subject to clause 2 that this agreement is in force.
“Service or Services” means services provided by Axscend Ltd.
“Site” means the Customer’s site at which the Equipment shall be installed (and/or programmed) if necessary and/or the Service provided.
2. Effective Date and Term
2.1. This Agreement shall have effect from its Effective Date. The Effective Date shall be the date of acceptance of the Agreement by Axscend Ltd detailed overleaf.
2.2. This Agreement shall come into full force and effect on the Effective Date and subject to clause 7 shall continue to be in full force and effect for the Initial Period, if any, and shall continue thereafter, unless and until terminated by either party giving to the other not less than the Minimum Notice in writing.
2.3. For the avoidance of any doubt the Initial Period for each Mobile Unit shall commence from the date that Services are connected.
2.4. For the avoidance of any doubt, it is expressly agreed that where Axscend Ltd has supplied the Customer replacement Mobile Units the Customer accepts the remaining Initial Period of the original Mobile Units shall apply to the replacements.
2.5. Any Services connected under this agreement (not detailed overleaf) will be subject to this agreement and will be treated as if a new agreement was taken out for each Service and therefore must be connected for an additional Initial Period (as overleaf) from the date of connection.
3.1. Axscend Ltd agrees to provide the Services to the Customer and the Customer agrees to use the Services on the terms set out in this Agreement.
3.2. The Customer undertakes to comply with all reasonable instructions given by Axscend Ltd relating to the Services and not to use the Services for any other purpose which is improper, or unlawful or in a manner which constitutes a violation or infringement of any act or regulation or of any duty or obligation of Axscend Ltd, statutory or otherwise to any third party.
3.3. The Customer acknowledges that any Access Number supplied for use in connection with the Services shall at all times remain the property of Axscend Ltd; and no rights shall be acquired in or any attempt made to apply for registration of the same as a trade or service mark by the Customer.
3.4. Where Axscend Ltd, supply any equipment free of charge the title shall remain with Axscend Ltd. Axscend Ltd shall be entitled to the return of all equipment supplied to the Customer free of charge, where this Agreement is terminated under clause 7. Equipment shall be returned at the expense of the customer. Axscend Ltd shall be entitled to charge and the Customer shall be obliged to pay the full retail price for any Equipment not returned within 30 days of a written request.
3.5. Axscend Ltd reserves the right to alter any name, number or code associated with the Services from time to time.
4. Responsibilities of the Customer
4.1. The Customer shall use the Services, and Equipment in the way described in the user guides or other instructions distributed by Axscend Ltd.
4.2. The Customer agrees:
4.2.1. to allow Axscend Ltd access at all reasonable times to the Site and/or Equipment for the purpose of implementation and performance of this Agreement and to provide Axscend Ltd, free of charge, with all information and assistance reasonably required by Axscend Ltd to perform its obligations under this Agreement.
4.2.2. Subject to clause 7, within 60 days of a request to terminate, the Customer is responsible for the disconnection of Mobile Units, failure to disconnect will result in the Customer’s continued liability to pay all applicable Charges.
4.2.3. to indemnify Axscend Ltd against all liabilities, claim, damages, losses and expenses arising from or in any way connected with any such use as prescribed in this Clause 7.
5.1. All Charges shall be as set out overleaf, quoted in writing, or stated by Axscend Ltd. All Charges are exclusive of Value Added Tax.
5.2. Following connection of the Services the Customer shall be invoiced by Axscend Ltd, monthly in advance for Charges.
5.3. Payment shall be made by Direct Debit and is due within fourteen (14) days of the invoice date. The time of payment of all Charges shall be the essence of this Agreement. If payment in full is not received by Axscend Ltd upon the due date, Axscend Ltd shall be entitled at its sole discretion to levy a late payment charge at a rate of 3% (above base lending rate of National Westminster Bank PLC) per month on any unpaid overdue balance.
5.4. All Charges shall be calculated by reference to data recorded or logged by Axscend Ltd and not by reference to data recorded or logged by the Customer.
5.5. The provisions of this clause 5 shall survive the termination of this Agreement.
6. Liability of Axscend Ltd
6.1. Up to £2,000,000 for death or personal injury resulting from our negligence.
6.2. Other than in accordance with 6.1, Customer acknowledges that its sole remedy for damages due to any failure, disruption or degradation in Service shall be limited to the charges imposed for the affected Service for the period such failure, disruption or degradation occurred. In no event shall Axscend Ltd be liable, whether for breach of contract, negligence, strict liability or otherwise for any loss of profits or special, incidental or consequential damages of any kind.
7.1. Without prejudice to their rights under this Agreement, Axscend Ltd and the Customer shall have the right to terminate this Agreement forthwith in the event that:
7.1.1. the other party is in default in its performance or observance of any of its obligations under this Agreement and, in the case of a remediable breach, fails to remedy the breach within 30 days written notice to do so.
7.2. Without prejudice to its other rights, Axscend Ltd shall have the right to forthwith to terminate this Agreement by notice in writing to the Customer without incurring any liability whatsoever in the event that:
7.2.1. the Customer fails to make any payment when it becomes due to Axscend Ltd.
7.2.2. any other circumstances outside the control of Axscend Ltd prevent the continuing supply of the Services including, but not limited to, any licence held by Axscend Ltd ceasing to be valid.
7.2.3. an interim order is applied for or made, a petition for a bankruptcy order is made, or a voluntary arrangement is approved, or an administration order is made, or a receiver is appointed in respect of the Customer’s assets or undertakings or a petition to wind up the Customer is passed or presented, or if any circumstances arise which entitle a Court or a creditor to appoint a receiver, administrative receiver or administrator, or to present a winding-up petition or obtain a winding-up order.
7.3. In the absence of default or failure on the part of Axscend Ltd, if this Agreement is terminated for any reason by either party within the Initial Period, the Customer must immediately pay all Charges which would have been payable for the remainder of the Initial Period, including Data Charges that will be calculated as the mean average of Data Charges prior to termination.
7.4. If this Agreement is terminated for any reason by either party at any time, the Customer must immediately cease to use the Services and pay all outstanding Charges.
8. Disruption in Service
8.1. Notwithstanding the provisions of clauses 5 or 7 above, the Customer acknowledges that provision of services is subject to the proper functioning of the Networks, not necessarily under the control of Axscend Ltd, and that obligations to provide service is subject to:
8.1.1. the proper functioning of the Network;
8.1.2. an obligation to comply with an order, instruction or request of government, an emergency service organization or other competent authority;
8.1.3. disruption of the Service as is necessary for the Network Operator or Axscend Ltd to comply with its maintenance obligations including repair, testing, upgrade or modification;
8.1.4. disruptions due to deficiencies caused by atmospheric or terrain condition or in-building conditions.
9. Intellectual Property rights and Confidentiality
All intellectual property rights subsiding in the Equipment (including any software which forms or is part of the Equipment) provided by Axscend Ltd shall remain the property of Axscend Ltd or its licensor.
10.1. This Agreement may not be assigned in whole, or in part, by the Customer without the prior written consent of Axscend Ltd, such consent not to be unreasonably withheld.
10.2. Axscend Ltd may assign this Agreement to an associated company or another Network Provider of the Network at any time.
11. Force Majeure
Neither party shall be liable to the other for any loss or damage which may be suffered by the other party due to any cause beyond the first party’s reasonable control, including, but not limited to, any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightening or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of government highways authorities, other telecommunications operators or administrators or other competent authorities, war, military operation, or riot, difficulty, delay or failure in manufacture, production or supply by third parties of any equipment provided under this Agreement.
12. Entire Agreement
This Agreement represents the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior understandings and representations, whether written or oral and this Agreement may only be modified if such modification is in writing and signed by Axscend Ltd and the Customer.
13. No Waiver
Failure by either party to 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 thereof, or any right on any later occasion.
Any notice, invoice or other document to be given under this Agreement may be given by either party only by posting by registered first class post or delivering the same or sending the same by facsimile transmission to the other party at the address notified by such other party in writing as the address to which notices, invoices and other documents may be sent. Such notice, invoice or other document shall be deemed duly given forty-eight hours after posting or, if served by delivery, upon delivery or, if sent by facsimile transmission, at the time of transmission.
Any provision of this Agreement which is declared void or unenforceable by any competent authority or court shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect the other provisions of this Agreement which shall continue unaffected.
16. Governing Law
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.
Axscend Ltd may from time to time with immediate effect vary any of the terms and conditions of this Network Service Agreement (or introduce new terms and conditions) as a direct result of new legislation, statuary instruments, Government regulations or licences, amendments to the Network Operators standard terms and conditions or similar events, providing this shall be limited to the extent deemed by Axscend Ltd to be reasonably necessary for compliance the therewith.