Conditions of Sale
BETWEEN:
(1) Caversham Telecom whose registered office is at 20 Priest Hill, Caversham, Reading, RG4 7RZ ("Service Provider"); and
(2) the Customer
WHEREAS:
The Customer wishes to receive from us the Services detailed on your order, our proposal or any additional services that we may provide from time to time.
IT IS AGREED as follows:
1. Interpretation
1.1 In this Agreement the following words and phrases shall, unless the context otherwise requires, have the following meanings:
"Agreement" means these Terms and Conditions for the supply of Services and our quotations to you from time to time;
"Charges" means all our charges for providing the Services as set out in our quotations to you, which are exclusive of value added tax unless otherwise stated;
"Documentation" means a description of the Services as specified in our user and operating manuals;
“Force Majeure” means any events or circumstances beyond the control of a party which prevent or impede the due performance of this Agreement and which by the exercise of all reasonable due diligence such party is unable to prevent, provided that the mere shortage of labour, materials, equipment or supplies shall not constitute Force Majeure;
"Intellectual Property" means property in which intellectual property rights of whatever nature (including but not limited to patents, trade marks, database rights and present and future copyright) subsist and, where the context so admits, includes such intellectual property rights;
"Licensed Network Operator" means the carrier to whom OFCOM has allocated a telephone number or the carrier to whom the number has subsequently been ported, including Licensed Network Operators for whom we may act as agents from time to time;
"Minimum Period" means a period of twelve months from the date on which we first provide the Service to you or an expressly agreed trial period;
"OFCOM" means The Office of the UK Telecommunications regulator or its successors;
"Our Access Numbers" means UK telephone numbers issued to us by a Licensed Network Operator;
"PhonepayPlus" the UK premium rate services regulator or its successors;
"Public Networks" means fixed or mobile telecommunications networks including the internet;
"Services" means the services described in our customer literature provided by us to you in accordance with the provisions of this Agreement and as specified by us on our proposal to you;
"us" and "we" means Caversham Telecom Ltd of 20 Priest Hill, Reading, RG4 7RZ;
"VAT" means value added tax;
"you" means the Customer, including its employees, contractors and agents;
"Your Access Numbers" means UK telephone numbers issued to you by a Licensed Network Operator which you arrange to have forwarded to Our Access Numbers.
1.2 The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to sub-clauses, Clauses and Schedules are to sub-clauses, clauses and schedules of this Agreement.
1.3 Unless the context otherwise so requires:
1.3.1 references to you and us include their permitted successors and assigns;
1.3.2 references to statutory provisions include those statutory provisions as amended or re-enacted; and
1.3.3 references to any gender include all genders.
1.4 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any schedule, the provision in the body of this Agreement shall take precedence.
2. Services
2.1 Supply of Services
2.1.1 We will provide the Services to you during the term of this Agreement and in accordance with the provisions of the Agreement.
2.1.2 We will use our reasonable efforts to make the Services available to you at all times. The extent and availability of the Services may be affected by faults in the Public Networks, services and equipment which are operated by persons other than us and are therefore outside our control.
2.1.3 We may temporarily suspend the Services in order to maintain or modify equipment or software used to provide the Services. Where this temporary suspension is less than 15 minutes it will not affect your obligation to pay the charges specified in Clause 5. Where the suspension exceeds 15 minutes, any monthly charge will be reduced pro rata to the period of the suspension as a percentage of the minutes in the month.
2.1.4 In addition to any other remedy or enforcing any right available to us, we may suspend the Services immediately without notice in the event of the following:
(i) you are in default in respect of your obligations under this Agreement;
(ii) we have reason to believe that you are using or allowing our Services to be used in a manner which may bring us or our Services into disrepute;
(iii) you exceed the monthly financial limit which we apply to your use of the Services;
2.1.5 In addition to any other remedy or enforcing any right available to you, you may suspend payment of the Charges immediately following written notice in the event that we are in default of our obligations under this Agreement.
3. Standards
3.1 Skill and Care
3.1.1 We will provide the Services from the date of the Agreement to the best of our ability and with reasonable skill and care.
3.1.2 In the provision of the Services, we shall use personnel who possess a degree of skill and experience which is appropriate to the tasks to which they are allotted and the personnel shall perform those tasks in a workmanlike and professional manner.
4. Customer's assistance
4.1
You shall at your own expense execute all documents and do all acts and
things reasonably required by us to give effect to the terms of this Agreement
and shall provide access to all information and documentation which is within
your possession which is reasonably required to enable us to fulfil our
obligations.
4.2
If the Service involves users being reverse billed by their mobile
network for SMS messages delivered to their mobile phones or calling a premium
rate number, you and your franchisees will make the cost of the Service,
including VAT, clear in all your promotional material relating to the Service
including web sites and conform to any other relevant rules or guidelines issued
by OFCOM and/or PhonepayPlus from time to time.
4.3
You will advise your users as to which UK mobile networks the Service
works on to the extent that these networks convey SMS messages and provide the
user’s current location to the Service but you may not claim that any of these
networks endorse the Service.
4.4 You will advise your
users that by sending a request SMS message they consent for the mobile operator
to release their location data to us for the provision of the service .
4.5 You will advise your users that we may suspend or terminate the service at any time.
4.6
You will advise your users that the accuracy of location based services
can vary depending on the user's situation i.e city vs. country.
4.7 You may not promote the Service on television.
5. Service Charges And Payments
5.1 Submission and Payment of Invoices
5.1.1 In consideration of the provision of the Services by us, you shall pay to us the Charges in the amounts specified in our monthly invoices.
5.1.2 On your signature of this agreement we shall submit to you a VAT invoice for the one time set-up charge.
5.1.3 On or after the first day of each month we shall submit to you a VAT invoice, together with all necessary substantiating documentation which is reasonably required by you, which invoice shall set out the monthly hosting Charges in advance and usage Charges in arrears.
5.1.4 You agree to pay all invoices presented by the 20th of month by the 28th of the following month.
5.1.5 Without prejudice to any other rights or remedies available to us, we reserve the right to charge interest on overdue payments at 2% above the annual base lending rate of Barclays Bank Plc in force from time to time. You will be responsible for all fees and expenses incurred by us in collecting overdue payments from you.
5.1.6 We reserve the right to impose a monthly financial limit or other limit as necessary for the use of the Services and we may alter the limit from time to time and we shall notify you of the limits and any alterations to it.
6 VAT
All Charges and payments to be made by you under this Agreement are stated exclusive of VAT which shall be paid by you at the rate from time to time prescribed by law.
7. Assignments And Sub-Contracting
Except as expressly set out in this Agreement, neither party shall be entitled to give, bargain, sell, assign, let or otherwise dispose of its rights and obligations under this Agreement without the other party’s prior written consent, which such consent shall not be unreasonably withheld or delayed.
8. Intellectual Property Rights
8.1 All Intellectual Property rights in the Services, including but not limited to all trade marks and names used by us (whether or not registered), call flow logic, service logic, graphics and voice recordings belong exclusively to us.
8.2 All Intellectual Property rights in information which you provide to us to enable us to provide or customise the Services, including but not limited to all trade marks, names (whether or not registered) addresses, employee details and telephone number, belong exclusively to you.
8.3 Neither party to this agreement shall register the other party's trade marks or names in respect of goods or services or as a corporate or trading name, nor use the other party's trade marks or names in respect of any other goods or services, nor use or register any mark or name which is confusingly similar to any of the other party's trade marks or names.
8.4 You acknowledge and agree that we own all right, title and interest in the Services and the Access Software, including all Intellectual Property rights therein and thereto. Except as otherwise expressly stated in this agreement you do not acquire any rights, express or implied, in the Services or the Access Software.
9. Confidentiality
9.1 Except as required by law both parties shall procure that all confidential information disclosed by one party to the other in accordance with this Agreement or which may at any time until termination of this Agreement come into the other party's knowledge, possession or control shall not be used for any purposes other than those required or permitted by this Agreement and shall remain confidential and shall not be disclosed to any third party except insofar as this may be required for the proper operation of this Agreement and then only under appropriate confidentiality provisions approved by the other party. For the purposes of this Agreement information relating to the business of the Customer, its business systems, business processes and client and supplier lists are hereby deemed to be confidential information. These obligations of confidentiality shall cease to apply to any particular item of confidential information once it becomes public knowledge other than by any act or default of either party.
10 Customer Data
10.1 We shall take all necessary steps to ensure that data or information belonging to you which comes into our possession or control in the course of providing the Services is protected in accordance with your written IT security policy and in particular we shall not:
10.1.1 use the data or information nor reproduce the data or information in whole or in part in any form except as may be required by this Agreement; or
10.1.2 disclose the data or information to any third party or persons not authorised by you to receive it, except with your prior written consent.
10.2 We shall not, manipulate, remit or capture, or in any other way interfere with your data or information which is, under our possession or control except when this is done to enable us to continue to provide the Services and with your express permission.
11 Disclaimer of Liability and Indemnity
11.1 Any limitation of liability set out in this Agreement shall not apply so as to restrict either party's liability for death or personal injury resulting from that party's negligence.
11.2Subject to the other provisions of this clause 11:
(a) our liability to you for any event or series of related or unrelated events will in no circumstances exceed £500.
(b) we will in no circumstances be liable for any indirect, consequential or economic loss, including but not limited to loss of business, loss of contracts, loss of profits, loss of anticipated savings and claims by third parties, whether or not foreseeable.
11.3 You shall indemnify us and keep us fully and effectively indemnified against any and all losses, claims, damages, costs, charges, expenses, liabilities, demands, proceedings and actions which we may sustain or incur, or which may be brought or established against us by any person and which in any case arise out of all in relation to or by reason of:
11.3.1 any breach by you of your obligations under this Agreement;
11.3.2 any unauthorised act or omission of you or your employees; or
11.3.3 the manner in which you use and market the Services.
12. Termination of the Agreement
12.1 In addition to any other remedy, we may terminate the Agreement immediately at any time by giving you written notice if:
(a) you break any of your obligations under the Agreement or fail to pay any Charges when they are due;
(b) you become insolvent or make any arrangement with or for the benefit of creditors or (if you are a partnership) you cease trading or are dissolved or (if you are a company) you cease trading or go into compulsory or voluntary liquidation or if a receiver, administrative receiver or liquidator is appointed over your assets or if you are subject to an administration order;
(c) you supply any information to us which is false or misleading or which we reasonably suspect may be false or misleading;
(d) we have reason to believe that you are using or allowing our Services to be used in a manner which may bring us or our services into disrepute.
12.2 You may terminate the Agreement immediately at any time by giving us written notice if we break any of our obligations under the Agreement or are subject to any events of insolvency listed in clause 12.1(b) and we do not remedy the breach within 14 days of a request from you.
12.3 At any time after the end of the Minimum Period, either party may terminate the Agreement by giving the other party at least thirty days' written notice expiring any time thereafter.
12.4 If you wish to terminate the Agreement during the Minimum Period or we terminate the Agreement during that period for any of the reasons in clause 12.1, you must immediately pay any monthly or other time related Charges up to the end of the Minimum Period, in addition to any other outstanding Charges.
12.5 Immediately upon termination of this Agreement you must cease using all of Our Access Numbers. If you have forwarded Your Access Numbers to any of Our Access Numbers you must instruct your carrier to deactivate these numbers or have them forwarded to some other number.
12.6 Immediately upon termination of this Agreement, we will have the right to reallocate and reuse Our Access Number for any purpose which we see fit.
13. Force Majeure
If either party is prevented or impeded from or in performing this Agreement by Force Majeure it shall promptly give notice to the other party stating the circumstances constituting Force Majeure and the extent thereof and the obligations of the parties shall thereupon be suspended for so long as the circumstances of Force Majeure may continue. A party affected by Force Majeure shall use every reasonable effort to minimise the effects thereof and shall promptly resume performance as soon as reasonably possible and practical after removal of the circumstances of Force Majeure.
14. Data Protection
Where you are providing us with personal data within the meaning of the Data Protection Act 1998 ("1998 Act"), you shall ensure that all necessary consents are given by the relevant data subject in relation to such data for the purposes of allowing us to process such data lawfully within the provisions of the 1998 Act. You hereby irrevocably undertake to indemnify us against any liability incurred by us due to your failure to obtain any such consents.
15. Miscellaneous Provisions
15.1 Subject as expressly provided in these conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
15.2 For the purposes of Section ((2) of the Contracts (Rights of Third Parties) Act 1999, it is not intended that any of these terms be enforceable by third parties but any third party right which exists or is available independently of the Act is preserved.
15.3 You shall not acquire any rights in any telephone numbers which we allocate to you and you shall not try to register any number as a trade mark.
15.4 If on any occasion either party chooses not to enforce the Agreement or allow the other party additional time to perform any of its obligations that will not affect such party’s right to enforce the Agreement on other occasions.
15.5 Any modification of this Agreement shall be effective only if agreed in writing and signed by duly authorised representatives of both parties and the intention to amend this Agreement is clearly expressed.
15.6 This agreement supersedes all prior agreements, arrangements and understandings between the parties in relation to its subject matter.
16. Notices
Notices shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Agreement. Notices may be sent by first-class mail or facsimile transmission provided that facsimile transmissions are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed facsimile transmissions shall be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above.
17. Proper Law
This Agreement shall be interpreted in all respects in accordance with the laws of England. The parties hereby submit to the non-exclusive jurisdiction of the English Courts for the determination of any question or dispute arising in connection with this Agreement or any individual or contract for the sale of the Services.