1.1. The following definitions and rules of interpretation apply in these Conditions.
Acts: means the Wireless Telegraphy Act 2006, the Communications Act 2003 and any amendments or re-enactments to the same that may be made from time to time;
Charges: as defined in the MSA Terms
Customer: as defined in the MSA Terms;
Contract: means the agreement between Wavenet and the Customer pursuant to which Wavenet agrees, subject to the terms set out in the Contract, to provide the Equipment and/or Services;
Equipment: as defined in the MSA Terms;
Fees: means the applicable fee(s) or tariff(s) calculated inaccordance with Wavenet’s standard rates from time to time, which are available from Wavenet on request;
Lease Finance: means the provision of Equipment and/or Services to the Customer via a third party, where the third party purchases the Equipment and/or Services from Wavenet and leases the Equipment, and (if applicable) provides the Services with Wavenet acting as its sub-contractor, to the Customer;
Liability: means all loss, damage, costs, expenses (including all professional and legal costs and expenses) and other liability, whether direct, indirect or consequential and whether arising in tort (including negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise;
MSA Terms: means Wavenet’s Master Services Agreement terms and conditions which are attached or referred to in the Contract;
Security Services: means, during the installation of any Equipment provided by Wavenet : (i) testing for unauthorised access using industry recognised software tools; (ii) penetration testing to attempt to gain access to the Customer’s system, data and/or other material other than through a recognised access method; (iii) testing for known vulnerabilities in system architecture configuration and/or software and hardware using industry-standard methodologies; and/or (iv) the provision of a written report on this testing;
Services: as defined in the MSA Terms;
Service Terms: as defined in the MSA Terms, which includes these Supply and Installation Terms and Conditions;
Site: as defined in the MSA Terms; and
Start Date: as defined in the MSA Terms;
Specification: means the specification of the Equipment or Services, as appropriate, which is set out or referred to in the Customer Agreement and which may be further detailed in the PID;.
References to “clauses” are to clauses of these terms and conditions (and not clauses of the MSA Terms), unless otherwise stated.
2. Service Terms
2.1. These Supply and Installation Terms and Conditions shall apply to and be incorporated into the Contract if Wavenet is providing and installing any Equipment pursuant to the Contract.
3. Customer’s responsibilities
In addition to the obligations of the Customer which are set out or referred to in the Contract (including the MSA Terms and all other applicable Service Terms), the Customer shall:
3.1. provide at its own expense such scaffolding, unskilled labour, lifting gear, building work, stable and clean electrical power (without surges), heating, lighting, ventilation, private wires, jack sockets and any other information, items, equipment and/or local conditions as are necessary for the efficient installation and operation of the Equipment. Any cutting away and making good of floors, ceilings, ceiling tiles and panels, trenching, back filling, supply and erection of poles and provision of trunking and ducting at the Site are the Customer’s sole responsibility;
3.2. accept delivery of the Equipment on the delivery date specified in the Contract (or as otherwise agreed with Wavenet);
3.3. except where Wavenet has agreed with the Customer that Wavenet is responsible for the connection of the Equipment, be solely responsible for: (i) obtaining the consent of the relevant network operators for the connection of the Equipment to the relevant network; (ii) arranging for the connection of the Equipment to the relevant networks, including any test lines required; (iii) paying any connection charges; and (iv) complying with any conditions relating to the connection;
3.4. ensure that any other equipment attached to or used with the Equipment is suitable for attachment to or use with the Equipment, is in good working order, is maintained in accordance with the manufacturer recommendations and complies with any relevant network operators’ requirements and/or telecommunications regulations. The Customer acknowledges and accepts that such equipment is attached to or used with the Equipment at the Customer’s risk;
3.5. comply with all statutory requirements (including the Acts), bylaws, regulations, and network operators’ requirements in relation to its use of the Equipment and operate the Equipment in accordance with the manufacturer’s guidance, Wavenet’s reasonable instructions and good industry practice; and
3.6. be solely responsible for any costs and charges relating to the use (whether malicious, fraudulent or otherwise) of the Equipment by the Customer, anyone acting on behalf of the Customer and/or any other third party, whether from or within the Customer’s premises or via external means. The Customer acknowledges that voicemail ports that are configured to allow external calls may be vulnerable to fraudulent access. Any such configuration is solely at the Customer’s risk and Wavenet will have no Liability for the cost of any external calls made using such voicemail ports.
4.1. Title to the Equipment shall only pass to the Customer if expressly stated in and then only in accordance with the Contract (including the MSA Terms).
4.2. The Customer shall be fully responsible for any loss and/or damage to such as tools and plant taken to the Site by Wavenet for the purposes of the fulfilment of Wavenet’s obligations under the Contract. Customer shall reimburse Wavenet in full and on demand for the full replacement cost of any such equipment which is lost or damaged, except to the extent that any damage caused to such equipment is due to any act of negligence on the part of Wavenet.
5.1. Wavenet reserve the right to issue invoices for equipment on the following terms;
5.1.1. Stage 1 Payment: 60% Value on order
5.1.2. Stage 2 Payment: 30% Value on delivery
5.1.3. Stage 3 Payment: 10% Value on completion
5.2. Except as otherwise provided in the Contract, Wavenet shall be entitled to invoice the Customer upon completion of the installation of the Equipment at the Site. If the Customer causes the commencement or completion of the installation of Equipment and/or commencement of any related Services to be delayed, Wavenet reserves the right to invoice the Customer for some or all of the Charges on the date(s) that Wavenet would have been paid, had the Customer not delayed the commencement and/or completion of such installation or related Services.
5.3. If applicable, where Lease Finance is utilised by the Customer but is withdrawn for any reason, the Customer shall be primarily liable to Wavenet for payment of the Charges and any other Fees due under the Contract and, subject to the Customer paying such Charges and Fees, Wavenet shall supply the Equipment and Services directly to the Customer under the Contract.
5.4. Wavenet reserves the right to increase the Charges in accordance with the MSA Terms.
6.1. Wavenet shall not be responsible for maintenance of the Equipment unless specifically referred to in the Contract and subject to the Customer entering into a maintenance agreement in respect of the Equipment on Wavenet’s standard terms.
7. Security Services
The Customer acknowledges that:
7.1. Security Services only relate to the relevant systems and configuration on the date that the tests were performed and that, due to the constantly changing nature of information technology security risks, Wavenet cannot guarantee that the Security Services will identify all risks and threats to the systems; and
7.2. in the course of providing the Security Services it may be necessary to demonstrate vulnerabilities by providing examples of material that have been observed on the relevant systems, some of which may be obscene, discriminatory or otherwise offensive or illegal. Wavenet will have no Liability in relation to such material and the Customer must provide notice to Wavenet prior to Wavenet commencing the Security Services if the Customer does not wish to be provided with such material.
8.1. Either party may terminate the Contract in relation to the supply and installation of the Equipment by Wavenet in accordance with the MSA Terms and/or these Supply and Installation terms and conditions.
8.2. Without prejudice to any of Wavenet’s other rights and remedies, Wavenet may terminate the Contract with immediate effect on notice to the Customer if Lease Finance is withdrawn.