TERMS & CONDITIONS FOR SUPPLY AND/OR INSTALLATION OF EQUIPMENT, AND FOR THE PROVISION OF SERVICES

1. Definitions
   Agreement means these terms and conditions, the Quotation, and the specification therein.
   Customer means Holler’s immediate Customer, who may in turn contract with an end user customer.
   Equipment means the equipment listed in the Quotation including any related software listed therein.
   Equipment Support Agreement means the agreement between Holler and the Customer for the provision of maintenance services.
   Holler means Holler Technology Ltd.
   Order means the written order placed by the Customer pursuant to a Quotation.
   Holler’s Cancellation Policy means Holler’s policy for the cancellation of Orders, available upon request from Holler.
   Quotation means the quotation for Equipment and/or installation or Services to be provided to the Customer by Holler.
   Services means the services to be delivered to the Customer by Holler as described in the Quotation. Site means the location at which the Equipment is to be installed or the Services provided.
   2.The Equipment and the specification
   a) Holler shall supply and/or install the Equipment or provide the Services listed in the Quotation.
   Holler reserves the right to change the specification and parameters of the Equipment to be supplied insofar as such changes do not materially affect the operational performance of the Equipment.
   b) Holler will perform its duties under this Agreement with the reasonable skill and care that could be expected of a competent provider in its business.
   c) Holler is not responsible for providing software upgrades, enhancements, or patches free of charge.
   3.Customer’s Responsibilities
   The Customer shall be responsible for the following:
   a) Technical Information
   The Customer is responsible for supplying Holler with all the necessary technical information regarding the Site, and the Customer’s operating
   requirements, within any period specified to it by
   Holler, or if no time is specified within reasonable time to allow Holler to plan and arrange for such installation or provision of Services.
   b) Preparation of the Site
   Before delivery is due to take place, the Customer shall prepare the Site in accordance with specifications stipulated by Holler. The Customer shall ensure that all programming performed by a third party is backed up and made available to Holler. It is advised that both the site plans and programming diskette are located next to the system. Any cost incurred by Holler as a result of the Customer’s failure to perform the above, including storage costs, shall be paid to Holler by the Customer.
   c) Provision of Facilities
   The Customer will provide at its own expense such scaffolding, unskilled labour, lifting gear, builders work, electrical power, heating, lighting and ventilation as are necessary for installation of the Equipment, and where electrical supplies are required these shall be clean and stable and will be provided and maintained by the Customer at its own expense. Any cutting away and making good of floors, ceilings, ceiling tiles and panels, trenching, back filling, the supply and erection of poles and the provision of trunking and ducting are the Customer’s responsibility unless expressly agreed in writing.
   d) Access
   The Customer shall provide Holler and Holler’s authorised contractors with access to the Site at all reasonable times. For health and safety reasons, Holler reserves the right to decline to attend the Customer’s site if Holler’s engineer will be alone on site or in an isolated area of the site.
   e) Way leaves/approvals
   The Customer shall obtain and pay for all necessary way leaves and secure the approval of appropriate planning and all other authorities as required.
   f) Attachments to Equipment
   Any attachments to the Equipment that are made by the Customer shall be at the Customer’s risk and the Customer shall be responsible for ensuring that they are suitable for use with the Equipment and comply with any network operators’ or telecommunications regulations.
   g) Regulatory
   The Customer is responsible for ensuring that its operation of the Equipment and/or its telecommunications systems will be in accordance with all applicable laws and regulations.
   h) Connection Approval
   It is the Customer’s responsibility to arrange for any necessary line connection to be made to telecommunications networks, together with the provision of any test lines as may be required, and to pay any connection charge, and to comply with any conditions relating to the connection. No liability shall attach to Holler if the network operator denies, delays, or withdraws connection facilities to approved Equipment.
   i) Use of the Equipment
   The Customer agrees to comply with good practice and shall make sure that the Equipment is not operated contrary to the manufacturer’s or Holler’s guidance.
   The Customer shall maintain an environment suitable to support efficient operation of the Equipment. The Customer is responsible for any damage caused by electrical surges, flooding, and lightning, over heating or other external influences, which do not constitute fair wear and tear.
   The Customer agrees that it will use best endeavours to ensure that the Equipment shall not be used by it for the sending over any network of any material (written or oral) which would be libellous, defamatory, blasphemous, illegal or unlawful or which a reasonable person would regard as offensive, indecent, menacing, a nuisance or a hoax.
   j) Health and Safety
   Prior to commencement of work by Holler at the Site, the Customer shall inform Holler’s employees attending the Site of all relevant health and safety regulations relating to the Site and any issues relating to dangerous substances, asbestos and similar risks, and the Customer shall comply with all relevant legal requirements including its employer’s duties under health & safety legislation.
2. Indemnity
   a)The Customer shall indemnify Holler from and against any and all losses, damages, liabilities, costs and expenses (including but not limited to reasonable legal fees) arising directly or indirectly from any breach by it of clause 3.
   b) Programming work moves, and changes and the provision of other services can result in faults arising on your telephone system. Holler will endeavour to fix these faults as a priority, however, should fixing these faults result in the need for labour or parts being used then these may be charged at Holler’s then current rates. Holler cannot be held liable for any loss or consequential loss incurred by the Customer because of this work.
3. Delivery, Risk and Title
   a) Holler and/or its nominated suppliers shall deliver to the Site and, if so contracted, install the Equipment.
   b) Risk in the Equipment shall pass from Holler to the Customer upon delivery to Site at which time the Customer shall accept full responsibility to provide insurance cover at full replacement value.
   c) Holler shall repair or at its option replace free of charge any part of the Equipment which is lost or damaged in transit, provided that Holler is given written notification of such loss or damage within five days of delivery.
   d) Payment for all Equipment supplied under any order must be made in full on or before its due date not withstanding any defect in part of the Equipment.
   e) Risk in all other equipment, such as tools and plant taken to the Site by Holler for the purpose of performance of this Agreement, shall pass to the Customer when brought on to the Site by Holler (or its agent or sub-contractors) and shall remain with the Customer until such equipment is removed from the Site except in so far as any damage to, or loss of such equipment is due to any act of negligence on the part of Holler (or its agent or sub-contractor).
   f) Title to the Equipment shall pass to the Customer once Holler has received full payment for the Equipment.
   g) Where parts are delivered to the Customer by courier and/or electronic worksheets are used, the Customer agrees that electronic signatures applied in acknowledgement of parts delivered or services rendered will have the same legal force as hard copy signatures.
4. Liability for Delay
   a) Any times or dates quoted in the Quotation for installation completion or delivery of Services are to be treated as estimates which are accurate to the best of Holler’s knowledge, and all reasonable efforts will be made to adhere to such estimates. However, any times quoted for delivery of the Equipment, installation completion or provision of Services are for guidance only.
   b) The installation or Services provision completion date may be subject to extension if any incidence of delay is the result of the Customer’s instructions or lack of instructions, industrial dispute, or any other causes beyond Holler’s reasonable control.
   c) In the event that the Customer is unable to take delivery of the Equipment upon any agreed delivery date, Holler reserves the right to deliver the Equipment into storage and invoice the Customer as though the delivery has been made to the Site.
   d) Holler shall also be entitled to recover any reasonable additional costs incurred by it or its sub-contractors as a result of delay caused to delivery and/or installation or Services provision completion by the Customer, including overtime
   costs if relevant.
   e) Where a deposit is required from the Customer, Holler reserves the right to delay placing an order for the Equipment until the deposit has been paid.
5. Contract Price
   The Customer agrees to pay Holler the payments detailed in the Quotation. All payment sums are expressed exclusive of VAT and any other taxes, duties, levies or other deductions or withholdings for which the Customer shall be liable.
   All payments due under this Agreement shall be payable in cleared funds in accordance with the schedule specified in the Quotation, or if not specified, within 14 days of the date of Holler’s relevant invoices. If payment is not made on or before its due date, without prejudice to any other right or remedy available to Holler, Holler shall be entitled:
   a) to charge the Customer interest (both before and after any judgement) on the amount outstanding on a daily basis at the rate of 4% above the base rate of Natwest Bank plc from time to time in force; and/or
   b) suspend deliveries on this and any other agreement held with the Customer, its parent company, subsidiary, or associates, including the suspension of maintenance services under any Equipment Maintenance Agreement; and/or
   c) enter the Customer’s premises and recover the Equipment delivered or installed. In such an event Holler shall return any sums previously paid less sums reasonably incurred by it in the delivery, installation and recovery of the Equipment including any loss in value on the Equipment’s subsequent resale.
   d) No counterclaim or set-off by the Customer may be deducted from any payment due to Holler on any account whatsoever without the prior written consent of Holler.
6. Support
   a) Holler reserves the right to add all or part of the Equipment to the Customer’s Equipment Support Agreement with Holler, in which case Holler will invoice the Customer for the additional support charge, which will be settled by the Customer within 14 days of the date of Holler’s invoice therefor.
   b) Support services will be subject to the Equipment Support Agreement between Holler and the Customer or, in the absence of Equipment Support Agreement, subject to Holler Standard Terms and Conditions for Support (available on request).
7. Liability and Warranties
   a) Save as expressly provided in this Agreement no other conditions, warranties, or representations (express or implied, written, or oral) are given by Holler in respect to the Equipment, and any condition implied by law is expressly excluded. The Customer expressly affirms that it is not relying on any warranty, condition or representation not contained in this Agreement.
   b) Nothing in this Agreement shall be taken to exclude or limit Holler’s liability for death or personal injury arising from the negligence of Holler, its employees, or sub-contractors.
   c) Up to a limit of £100,000 Holler accepts liability for direct damage to the Customer’s physical property where such damage results directly from the proven negligence of Holler, its employees, or sub-contractors in the performance of this Agreement. Holler’s aggregate liability to the Customer for damages in respect of negligence, breach of contract, tort, misrepresentation or any other legal liability in connection with or related to the subject matter of this Agreement shall in no circumstances exceed £100,000 in respect of any single occurrence or series of occurrences whether successive or concurrent.
   d) Holler, its directors, officers, employees and/or agents shall not in any event be liable for any indirect, consequential, incidental or special damages or any loss of profits, revenue, goodwill or anticipated savings whether sustained by the Customer or any other party.
   e) Holler shall not be liable for any costs, or consequential losses or consequential costs relating to telephone calls or any malicious acts resulting from these telephone calls made in a malicious or otherwise manner, made through the telephone system either from within the Customer’s premises or by a third party obtaining access to the Customer’s system. For the avoidance of doubt, the security of the Customer’s telephone system is the sole responsibility of the Customer notwithstanding any work carried out on the system by Holler employees or sub-contractors.
   f) Holler shall not be liable for any costs, or consequential losses or consequential costs resulting from the Customer’s inability to perform pre-programmed tasks (for example analysis of call logging records) following work carried out by Holler. Whilst Holler will endeavour to minimise disruption to the Customer, the Customer acknowledges that it is solely responsible for such programming and re- programming, and checking that programmes have not been affected by any work carried out on its systems.
   g) Holler accepts no liability for any claim relating to least cost routing programming.
8. Termination of Contract
   a) The Customer shall be entitled to cancel an Order at any time prior to the point in time when the Services are first supplied in accordance with the terms of Holler’s Cancellation Policy, unless otherwise agreed by Holler.
   b) Without prejudice to its other rights under this Agreement or otherwise, Holler shall have the right forthwith to terminate this Agreement and claim any resulting losses or expenses if:
   i. the Customer commits a breach of this or any other contract with Holler and fails to remedy such breach within reasonable time (not to exceed 30 days) upon being given notice by Holler to that effect; or
   ii. the Customer enters into liquidation whether compulsorily or voluntarily (otherwise than for the purpose of amalgamation or reconstruction where the emerging company assumes the obligations hereunder of the party entering into liquidation) or compounds with its creditors or has an administrator, administrative receiver or receiver appointed over all or any part of its assets or undertaking or takes or suffers any similar action in consequence of debt; or
   iii. the Customer fails (where required by the Customer) to enter an appropriate third-party leasing or financing arrangement.
9. Force Majeure
   Holler shall not be liable to the Customer nor held in breach of this Agreement if prevented, hindered, or delayed in the performance or observance of its obligations hereunder resulting from acts beyond the reasonable control of Holler, including but not limited to acts of God, acts or regulations of any governmental, supra-national or regulatory authority, war or national emergency, accident, fire, riot, strikes, lock-outs, industrial disputes, epidemics, third party hardware, software or other equipment, communication line failure or failure or fluctuation of power supply.
10. Confidentiality
    Both parties agree to keep secret and confidential both during and after the term of this Agreement all information relating to the business affairs, products, or services of the other disclosed to it by the other party. The obligation of confidentiality shall not apply to information which is in the public domain other than by breach of the terms of this Agreement by the receiving party.
    13.Non-solicitation
    During the term of this Agreement, and for 12 months after its expiry or termination, Customer undertakes not to solicit or seek to induce to leave the employ of Holler any person who was an employee of Holler during the period of Holler’s undertaking the Services, and who worked with or under the supervision of Customer at any time during that period.
11. Assignment
    Holler may assign or transfer this Agreement or part of it to another company without the agreement of the Customer and may subcontract its responsibilities or any of them under this Agreement. The Customer may assign or transfer this Agreement with Holler’s prior written agreement.
12. Law
    a) This Agreement shall be subject to, governed by, and construed in accordance with the laws of England and Wales and the parties hereby submit to the non-exclusive jurisdiction of the English Courts.
    b) The illegality, unenforceability, or invalidity of any provision of this Agreement shall not affect any other provision.
    c) A person who is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement.
    d) Any express or implied waiver by Holler of any term or condition of this Agreement or of any breach or default by the Customer may be terminated by Holler at any time. No such waiver shall constitute a continuing waiver, nor shall it prevent Holler from acting upon that or any subsequent breach or default or from enforcing any term or condition of this Agreement.
    e) Personal data (as defined in the Data Protection Act 1998, or any amendment or re-enactment thereof) in respect of a Customer which is obtained consequent to this Agreement will be held on Holler’s computer system, and may be used by Holler for the purposes of assessing the level of credit which should be extended to the Customer. The information may also be used for the future marketing of related products and services of Holler or any of its associated companies unless the subject of the personal data gives Holler notice in writing to the contrary.
13. Entire Agreement
    The parties agree that the Agreement contains the entire agreement of the parties and supersedes all prior agreements, understandings, or arrangements between them and further each party acknowledges:
    a) that it has not entered into this Agreement on the basis of and does not rely and has not relied upon any statement or representation (whether negligently or innocently made) or warranty or other provision (whether oral, written, express or implied) except those expressly repeated or referred to in this Agreement;
    b) the only remedy or remedies available in respect of any misrepresentation or untrue statement made to it shall be a claim for breach of this Agreement, and each party further acknowledges that this clause shall not apply to any statement, representation or warranty made fraudulently or to any provision of this Agreement which was induced by fraud so that nothing in this Agreement shall affect the remedies available to the parties in respect of such fraudulent matters;
    c) that no variation of the conditions in this Agreement shall have effect unless expressly accepted in writing by a duly authorised officer of Holler. The Customer should, however, read this Agreement in conjunction with its Equipment Maintenance Agreement.
    d) For the avoidance of doubt, any standard pre- printed terms and conditions contained in the Order issued by the Customer are excluded from forming part of this Agreement, unless otherwise agreed in writing by Holler
14. Notices
    Any notices in connection with the Agreement may without prejudice to any other method of service be served on each party at the address specified in the Quotation, or any alternative address notified to the other party in writing.