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Terms & Conditions

AGM TELECOMMUNICATIONS STANDARD TERMS AND CONDITIONS FOR THE PROVISION OF INDIRECT TELECOMUNICATIONS SERVICES

1. INTERPRETATION
1.1          In this Agreement the following terms shall have the following meanings:-
Access Code means the series of digits specified to the User by AGM to be dialled by the User prior to making a telephone call in order to access the Services;
Actmeans the Telecommunications Act 1984;
Agreementmeans these terms and conditions together with the Tariff Sheet;
Call Charges means the charges payable to AGM for the use of the Services;
Charges means all Call Charges, Connection Charges or Rental Charges payable by the User in connection with this Agreement;
Commencement Date means the date set out in the Agreement;
Connection Charges means the charges (if any) payable by the User to AGM for the connection of the Services;
Force Majeure has the meaning set out in Clause 14;
Maintenance Services means maintenance services provided by AGM in accordance with Clause 10;
Minimum Period means the period (if any) stated in the Agreement and commencing on the Start Date;
Network Operator means any licensed public telecommunications operator used by the User to connect telecommunications services to and from its Premises and/or used by AGM to deliver the Services to the User;
OFTEL means the Office of Telecommunications;
On-Site Equipment means any AGM equipment located at the Premises supplied by AGM as part of the Services;
Premises means the premises where the Services are to be provided,;
Rental Charges means the charges (if any) payable to AGM in respect of the use of any On-Site Equipment, as specified in this Agreement or as varied in accordance with Clause 11.2;
Services means the provision by AGM to the User of a telecommunications service by indirect means;
Start Date means the date specified in the Agreement, being the date upon which the Services are to be made available for use in accordance with the terms of this Agreement;
Tariff Sheet means the standard AGM schedule of charges applicable to the provision of the Services as provided to the User from time to time;
AGM means AGM Telecom, whose registered office is at Meridian House, Road One, Winsford, Cheshire, CW7 3QG and includes its permitted successors, assigns, employees and agents;
AGM Customer Care Centre means the centre, details of which will be supplied to the User, to which all fault reports and help queries should be addressed;
AGM Licence means the licence granted to AGM pursuant to the Act and any radio licence granted to AGM that is relevant to this Agreement;
AGM Network means the telecommunications system operated by AGM pursuant to the AGM Licence;
User Premises Equipment means the service delivery equipment at the Premises (including, but not limited to), the Users telephone system, operated together with the On-Site Equipment (if any), for the purposes of obtaining the Services;
User means the person or company named in the Agreement as the customer and any other person reasonably appearing to act within that persons or companys authority and includes where relevant the Users permitted assigns employees and agents;
User Licence means the licence issued or published by the DTI pursuant to the Act in accordance with which the User is entitled to use the Services;
Working Day means Monday to Friday except for bank and public holidays.
1.2          In this Agreement unless the context otherwise requires:-
1.2.1      Words used in the singular only shall include the plural where appropriate and vice versa words denoting any gender shall include every gender and references to persons shall include bodies incorporated and unincorporated;
                and
1.2.2      References to any Clauses are to the clauses of this Agreement; and
1.2.3      Any headings are for convenience only and are not to be used as an aid to interpretation; and
1.2.4      Reference to any Act of Parliament  shall be deemed to include any amendment replacement or re-enactment thereof for the time being in force and to include any by-laws statutory instruments rules regulations notices directions consents or permissions made thereunder and any condition attaching thereto; and
1.2.5      Any undertaking by the User not to do any act or thing shall be deemed to include an undertaking that the User shall not to the extent possible permit or suffer the doing of that act or thing.
2.            TERM
              Unless specified otherwise, this agreement is for a minimum period of 1 year.  Thereafter, this agreement shall continue in force unless and until terminated by either party on no less than 12 months prior written notice, such notice not to expire before the end of the Minimum Period.

 

3.            PROVISION OF SERVICES
3.1          AGM shall provide the Services subject to the terms of this Agreement, any relevant provisions of the Act and of the AGM Licence, via the provision of an Access Code or of On-Site Equipment or by the modification of the User Premises Equipment.
3.2          AGM shall make the Services available for use by the User from the Start Date unless otherwise expressly agreed in writing or unless AGM is unable to do so as a result of a failure by the User to fulfil its obligations in this Agreement, or (for the avoidance of doubt) as the result of an incident of Force Majeure.
3.3          AGM shall be entitled to modify and/or replace any On-Site Equipment from time to time if AGM considers such modification and/or replacement appropriate for the continued provision of the Services.
3.4          The User shall grant or shall procure the grant to AGM of such rights of access to the Premises and shall provide to AGM such facilities and information as AGM may reasonably require it to perform its obligations under this Agreement.
4.            USER PREMISES EQUIPMENT
4.1          The User shall only use User Premises Equipment which conforms to the then current approval or standard under Section 22 of the Act and shall comply at all times with any conditions applicable to such standard or approval. Any User Premises Equipment supplied by AGM as part of the Services shall be in accordance with such approval or standard. AGM reserves the right to disconnect any User Premises Equipment which does not conform to such standard or approval or which, in AGM’s reasonable opinion, could cause death, personal injury or damage to property or impair the quality of the Services or any other services provided by AGM, including services to third parties.
4.2          Where modifications to the User Premises Equipment are necessary to access the Services the User shall carry out or procure the carrying out of the necessary modifications (as advised by AGM) prior to the Start Date.
4.3          The User shall make any such modifications to the User Premises Equipment as AGM may determine necessary in order to provide the Services, subject to the obligations of the User pursuant to Section 22 of the Act.
4.4          The User shall at all times ensure that the User Premises Equipment is kept in a good and proper state of repair and in suitable environmental conditions.
4.5          The User shall, if so requested by AGM, provide such information in respect of the User Premises Equipment as AGM may reasonably require for the purposes of providing the Services including, without limitation, information in respect of signalling equipment.
5.            PREPARATION OF PREMISES
5.1          As soon as reasonably practicable after the Commencement Date (and in any event prior to the Start Date), AGM will carry out any necessary surveys and install any On-Site Equipment at the Premises and will connect the same to the User’s network termination apparatus.
5.2          Following completion of the works described at Clause 5.1, AGM shall carry out its standard test procedures to ensure that the Services are ready for operation by the User..
5.3          Any duct, underground surface access chambers, cable or other materials developed or provided by AGM for the Services shall remain the property of AGM for its exclusive use. The User shall not and shall not allow any third party to interfere with or use the same.
5.4          Any On-Site Equipment shall at all times be the property of AGM and the User shall not remove or obscure any identification mark(s) affixed thereto. The User shall be liable for any loss or damage to such On-Site Equipment on the Premises, except to the extent due to the negligence or default of AGM.
6.            USER OBLIGATIONS
6.1          In order to enable AGM to fulfil its obligations under this Agreement in respect of the installation and connection of any On-Site Equipment, the User shall;
6.1.1      Procure all consents necessary from landlords or other interested third parties for the carrying out of preparation work at the Premises;
6.1.2      Provide site and building plans (to include full details of all internal cabling runs) of the Premises where deemed necessary by AGM in order for AGM to plan the connection of the Services;
6.1.3      Provide AGM with full details of all other services in the vicinity of the proposed works;
6.1.4      Ensure that any unique or special conditions applicable to the Premises that may affect the survey or the installation and maintenance of any On-Site Equipment are made known to AGM at the detailed survey stage;
6.1.5      Prepare the Premises in accordance with any instructions notified in advance by AGM and provide AGM with such assistance as AGM may reasonably require for the purpose of carrying out the installation and connection of any On-Site Equipment; and
6.1.6      Ensure that any network testing termination point serving the Premises to which the On-Site Equipment is to be connected is available for use upon request by AGM and is not moved or modified without notification to AGM.
6.2          The User shall advise AGM in writing of all health and safety at work rules and regulations of all dangerous objects and substances and any other reasonable security requirements applicable at the Premises and AGM shall use all reasonable efforts to observe and ensure that its employees and authorised representatives observe such regulations so advised while at the Premises provided that AGM shall not be liable hereunder if as a result of conforming with such regulations AGM is in breach of its obligations under this Agreement.
6.3          The User shall at its own expense provide such continuous supply of electrical current and connection sockets as may be required for the installation, operation and maintenance of the On-Site Equipment.
6.4          The User hereby licences AGM to enter the Premises for the purposes of preparing the Premises for the Services and to carry out the delivery and installation of the On-Site Equipment and any User Premises Equipment being installed by AGM, and to carry out the Maintenance Services.
6.5          The User shall not move, add to, modify or interfere with or attempt to repair, or cause to be repaired or serviced by any person other than AGM, any On-Site Equipment.
6.6          The User shall only attach to any On-Site Equipment such other equipment or apparatus as is approved for connection under the Act, unless with the prior written approval of AGM.
6.7          The User shall be responsible for the safe keeping of any On-Site Equipment while on the Premises, and for maintaining the necessary environmental and other conditions for any     On-Site Equipment as may be specified by AGM from time to time.
6.8          The User shall be responsible for making any notifications and obtaining any consents required under the Act or in respect of any other service providers, Network Operators, maintainers, installers or other relevant persons in connection with the preparation of the Premises, or the installation of any On-Site Equipment at the Premises.
6.9          The User will use all reasonable endeavours to ensure that the number of telephone calls made to or from the telephone number(s) provided by AGM under this Agreement does not significantly exceed the Users capability to answer or send such calls or cause congestion on the AGM Network and, in particular, shall give AGM at least 2 Working Days notice of any intention to advertise in the media or otherwise to publicise the telephone number(s) allocated to the User pursuant to this Agreement. Where AGM notifies the User of any such congestion, then the User shall immediately take all reasonable steps (which shall include, but not be limited to, arranging additional network capacity, adjusting its promotional activities or using call bureaux, for the relevant period) to prevent such congestion continuing.
6.10        In the event that AGM is unable to contact the User to notify it of any congestion in accordance with Clause 6.9, and/or the User does not or is unable to promptly prevent further congestion to the AGM Network, then AGM shall be entitled to take all reasonable steps to protect the AGM Network, including the suspension of the Services until AGM is satisfied that such congestion will not re-occur.
7.            ACCESS CODES
7.1          Where requisite AGM shall make the Access Code available to the User as part of the Services and shall supply details of the same to the User as soon as practicable after the date of this Agreement, and in any event prior to the Start Date.
7.2          AGM shall be entitled at any time, for reasons connected with any numbering scheme imposed upon it, or other operational or technical reasons, to change, modify or substitute the Access Code or add or subtract digits to it or introduce such additional codes as are required.
7.3          AGM shall provide the User with as much notice as is reasonably practicable in respect of any changes, modifications or substitutions to be made in accordance with Clause 7.2.
7.4          The User shall not acquire any title to, propriety right or interest in any Access Code issued by AGM.
8.            DIRECTORY INFORMATION/EMERGENCY SERVICES        
8.1          The User is responsible for ensuring that the Network Operator provides a directory information service and an emergency call service in accordance with the terms of the Network Operators license granted pursuant to the Act.
9.            USE
9.1          The User shall not use the Services otherwise than in accordance with AGM’s instructions as may be notified in writing from time to time and in accordance with the relevant provisions of the Act, the AGM License, the Users License, any relevant regulations or legislation (all as may be amended from time to time).
9.2          In particular, The User shall not use the Services for the purposes of sending, or in any way in connection with, any message or communication which is offensive, abusive, indecent, obscene or menacing or which does, or is intended to, cause annoyance, inconvenience or worry or which is fraudulent defamatory or intended to be a hoax call to any emergency services or which (in the reasonable opinion of AGM) brings the name of AGM into disrepute.
9.3          The User will not use the Services to advertise or promote any services which would breach any ICSTIS Code of Practice.
9.4          The User acknowledges that AGM will co-operate with the Police and any other relevant authorities (including but not limited to the Inland Revenue and the Trading Standards Office) in connection with any misuse or suspected misuse of the Services and the User consents to AGM co-operating with any other telecommunications operators in connection with any fraudulent activity related to or connected with the Services and agrees that AGM shall be entitled to divulge the name and address and account information relating to the User to such third parties.
9.5          The User acknowledges and accepts that it may from time to time be necessary for AGM to give information (on a confidential basis) relating to calls made by the User to any reseller, agent or dealer who initially referred the User to AGM and the User consents to AGM divulging the name and address and account information relating to the User to such third parties.
10.          MAINTAINENCE SERVICES
10.1        The User accepts that the Services cannot be provided fault free and that AGM will deal with faults in the manner set out in this Clause.
10.2        In the event that the User becomes aware of any fault or a breakdown in the operation of the Services or any On-Site Equipment, it shall notify AGM by contacting the AGM Customer Care Centre.
10.3        AGM shall not be held responsible for any faults which are the responsibility of the Users Network Operator.
10.4        The User shall provide AGM with any reasonable assistance, including working space, which AGM may reasonably require for the purposes of carrying out the Maintenance Services.
10.5        AGM shall make the Maintenance Services available each day of the year on a 24 hour basis. Subject to Clause 10.7, the Maintenance Services shall be provided free of charge.
10.6        If AGM is unable to carry out any Maintenance Services due to the default of the User, it reserves the right to charge the User for any reasonable costs and expenses incurred as a result of such default.
10.7        Maintenance Services shall not include any repairs or replacements due to:-
                10.7.1    Fault or negligence of the User, or
                10.7.2    Failure to comply with the provisions of this Agreement; or
                10.7.3    the connection of any On-Site Equipment to any other telecommunications networks or to any User Premises Equipment, including any building distribution wiring, not authorised by AGM; or
                10.7.4    The use of any User Premises Equipment, or any other equipment or software not         supplied by AGM.
10.8        The User may request AGM to repair or replace any On-Site Equipment as a result of any of the occurrences set out in Clause 10.7, but such repair or replacement will not form part of the Maintenance Services and AGM reserves the right to charge the User for such services.
10.9        AGM will (as part of the Maintenance Services) make available such updates and enhancements to any On-Site Equipment as AGM determines necessary.
11.          CHARGES
11.1        The User shall pay AGM all appropriate Charges.
11.2        Following the expiry of the Minimum Period, AGM may at any time vary the Charges. AGM will notify the User in writing of any such variation prior to implementation thereof on no less than 30 days notice. Where no Minimum Period has been specified, AGM shall be entitled to vary the Charges at any time and will publish details of any such changes at its registered office at least 2 weeks before the change is due to take effect.
11.3        On receipt of a notice in accordance with Clause 11.2, the User shall be entitled to terminate this Agreement at any time prior to the expiry of the 30 days notice by written notice to AGM.
11.4        Any Rental Charges shall be payable monthly in advance unless otherwise stated and shall be due from the Start Date. Any Connection Charges shall be payable upon the Start Date. Call Charges shall be payable monthly in arrears unless otherwise indicated in the Agreement.
11.5        Invoices for the Rental Charges and the Connection Charges shall be issued by AGM promptly following the Start Date. Call Charges shall be billed monthly in arrears and shall be calculated by reference to AGM’s usage recording data. All invoices shall be sent to the address specified in the Agreement.
11.6        Notwithstanding Clauses 11.4 and 11.5, AGM shall be entitled to seek a deposit from the User in respect of any of the Charges prior to, and as a condition of, delivery or installation of the On-Site Equipment and/or the commencement of the Services. Any deposit taken will be returnable to the User on termination of this Agreement less any Charges or other payments then outstanding to AGM.
11.7        All payments due hereunder are payable within 30 days of the date of the relevant invoice and shall be paid in full without any set-off, deduction or withholding of any other than as referred to in Clause 11.9. Time shall be of the essence in respect of such payments. AGM reserves the right to charge daily interest on any outstanding amounts until payment is received in full at a rate equal to 3% per annum above the lending rate of National Westminster Bank Ltd. as current from time to time whether before or after judgement until the date payment is received.
11.8        All amounts payable hereunder are exclusive of value added tax or any other applicable taxes which may from time to time be levied and such value added tax and any other such applicable taxes shall be itemised separately on all invoices and is payable by the user in addition to and, at the same time as, any Charges.
11.9        Where any payments properly due to AGM under this Agreement are outstanding AGM shall be entitled to offset such payments against any payments due from AGM to the User under any other agreements between AGM and the User which relate to telecommunications services.
12.          INTELLECTUAL PROPERTY RIGHTS
12.1        Any software contained in the On-Site Equipment or provided by AGM in connection with the provision of the Services is the property of AGM or its licensor and the User is hereby granted a non-exclusive, non-transferable right to use such software for the purpose of accessing the Services only. The User shall not make any modification to such software.
12.2        Any documentation provided by AGM to the User hereunder in connection with the Services (other than marketing, brochures, pamphlets or other literature) is the property of AGM or its licensor and is confidential to AGM or such licensor and shall not be copied or disclosed by the User to any third party (except as may be strictly necessary to comply with the terms of this Agreement) without the prior written consent of AGM or its licensor.
12.3        AGM shall indemnify the User against any claim by a third party that the Users use of any On-Site Equipment, or any software as described in Clause 12.1, constitutes the infringement of any third party’s intellectual property rights enforceable in the United Kingdom provided that the User shall;
                12.3.1    Notify AGM immediately it becomes aware of any such infringement or alleged                infringement;
                12.3.2    Allow AGM to conduct all negotiations and proceedings in respect of such           allegation;
                12.3.3    Make no admission or statement to such third party without the consent of AGM;          and
                12.3.4    Provide all reasonable assistance to AGM in conducting or settling any such claim.
12.4        AGM may in settling any such claim, alter or modify the On-Site Equipment or software so as to avoid infringement or replace the same with a non-infringing replacement, provided that the quality of the Services shall not be substantially degraded.
12.5        The above indemnity does not apply to any infringement of a third party’s intellectual property rights resulting from any modification to any On-Site Equipment made by the User without the consent of AGM, or the use of any On-Site Equipment or any software in combination with any other equipment, or software not supplied by AGM, or modifications to the On-Site Equipment or any software made at the request of, and to the design of, the User.
12.6        The User hereby indemnifies AGM against any loss, liability, damages or expenses arising out of any claim brought against AGM in respect of any infringement of a third party’s intellectual property rights in the manner describes in Clause 12.5
13           LIMITATION OF LIABILITY
13.1        AGM accepts liability for death or personal injury resulting from its own negligence or that of its employee’s sub-contractors or agents while acting in the course of their employment with AGM.
13.2        Subject to the limit set out in Clause 13.5, AGM accepts liability for direct physical damage to the User’s tangible property or to the Premises caused by the negligence of AGM or any defect on any On-Site Equipment or any other equipment supplied by AGM in connection with this Agreement.
13.3        All conditions, warranties, terms, undertakings and obligations implied by statute, common law, custom, trade usage or otherwise and all liabilities (if any) of AGM arising there from are hereby wholly excluded.
13.4        AGM shall in no circumstances be liable to the User in contract tort or otherwise (including, without limitation for breach of statutory duty) for any indirect or consequential losses or damages (including without limitation loss of business or of profits or of anticipated savings).
13.5        Other than in respect of Clause 13.1 and subject to Clause 13.2 the maximum aggregate liability of AGM in contract, tort, negligence or otherwise arising out of, or in connection with, this Agreement shall be limited in respect of any one event or series of two or more connected events to an amount equal to £1,000,000.
13.6        Each provision of this Clause 13 shall operate separately by itself and survive independently of the others.
14.          FORCE MAJEURE
                Except for any obligations to pay monies, neither party shall be liable to the other for any breach of this Agreement or failure to perform any obligation while such breach or failure was the result of any act of God, insurrection or civil disorder, war or military operations, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, national or local emergency, acts or omissions of government, highway authority or other government or regulatory authority, compliance with any statutory obligation, industrial disputes of any kind, the acts or omissions of Network Operators or any other cause beyond that party’s reasonable control.
15.          NOTICES
15.1        Any notice under or in connection with this Agreement shall, unless otherwise agreed, be in writing and may be sent by first class mail or by facsimile (confirmed by post) to the address of the party concerned set out in this Agreement or any other address notified from time to time.
15.2        Any notice addressed as provided in Clause 15.1 shall be deemed to have been given or made on the second Working Day after the posting if sent by first class post, 4 hours after dispatch on the date of dispatch if sent by facsimile, and upon delivery if delivered by hand (unless such delivery occurs on a day which is not a Working Day or after 4.00pm on a Working Day, in which case it will be deemed to have been given or made at 9.00am on the next Working Day).
16.          GENERAL
16.1        This Agreement constitutes the entire agreement between the parties with respect to its subject matter.
16.2        Both parties acknowledge that;
16.2.1    Neither of them has been induced to enter into this Agreement by any representations, warranty or other assurance not expressly incorporated into it; and
16.2.2    in connection with this Agreement both party’s only rights and remedies in relation to any representations, warranty or other assurance are for breach of this Agreement   and that all other rights and remedies are excluded, except in the case of fraud.
16.3        If any Clause or provision of this Agreement is held in valid or unenforceable the validity or enforceability of the remaining provisions shall not be affected or impaired thereby.
16.4        AGM reserves the right to make reasonable variations to these terms and conditions from time to time. Any such variations shall be notified to the User in writing.
16.5        The failure to exercise or delay in exercising any right or remedy under this Agreement shall not constitute a waiver of that right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
16.6        AGM may assign this Agreement or the benefit and/or the burden thereof. AGM shall be entitled to sub-contract any of its obligations hereunder to any third party. Neither this Agreement nor any licence granted hereunder shall be capable of assignment by the User in the absence of the prior written consent of AGM.
16.7        This Agreement shall be governed by and construed in accordance with English Law. The parties hereto submit to the exclusive jurisdiction of the English Courts.

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