Utilities Terms & Conditions
These Terms and Conditions shall apply to the provision of servicesSwitch Aid, a company registered in England and Wales under number 10827474 and whose registered office is at Building 8, Vance Business Centre, Team Valley, Gateshead, NE11 9NE, (“Switch Aid”) to Clients that require its services.
- Definitions and Interpretation
- In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
|“Agreement”||means the agreement entered into by Switch Aid and the Client incorporating these Terms and Conditions (or variation thereof agreed upon by both Parties) which shall govern provision of the Services;|
|“Business Day”||means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in London;|
|“Consumption Data”||means all information either (i) in the Client’s possession, custody or control; and or (ii) held by any current of past Utility Provider and which relates to the Client’s consumption of Utilities from time to time, including any prices charged in relation to such consumption;|
|“Client”||means the party procuring the Services from Switch Aid who shall be identified in the Proposal;|
|“Commencement Date”||means the date of this Agreement;|
|“Confidential Information”||means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);|
|“Fees”||means any and all sums due under the Agreement from the Client to Switch Aid, as specified in the Agreement;|
|“Good Cause”||means a charity registered with the Charities Commission, a school or a not for profit organisation or social enterprises that want to use their profits and assets for the public good;|
|“Letter of Authority”||means the letter of authority signed by the Client granting Switch Aid the right to share and obtain Consumption Data from the Client’s Utility Provider and to otherwise engage with such Utility Provider on the Client’s behalf in connection with the Services;|
|“Procurement Fee”||means the sum payable to Switch Aid by the Utility Provider as a result of the Client entering into a Utility Contract;|
|“Proposal”||means the document issued by Switch Aid setting out the nature of the Services|
|“Services”||means the services to be provided by Switch Aid to the Client in accordance with Clause 2 of the Agreement, as defined in the Proposal, and subject to the terms and conditions of the Agreement;|
|“Utilities”||means each and any of the following: heat, power, water, gas, telecommunications and such other supplies as set out in the Proposal;|
|“Utility Contract”||means the agreement to be entered into by the Client with the Utility Provider selected as a result of the Services for the supply to the Client of the Utility Services set out in such Utility Contract and on such terms as are agreed between the Client and the Utility Provider;|
|“Utility Provider”||means any supplier to the Client from time to time of Utility Services, whether introduced to the Client by Switch Aid or otherwise involved in the supply of Utility Services to the Client and which are relevant to the Services supplied by Switch Aid to the Customer;|
|“Utility Services”||means the supply of Utilities for consumption;|
- Unless the context otherwise requires, each reference in these Terms and Conditions to:
- “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
- a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
- “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
- a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and
- a “Party” or the “Parties” refer to the parties to the Agreement.
- The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
- Words imparting the singular number shall include the plural and vice versa.
- References to any gender shall include the other gender.
- References to persons shall include corporations.
- Provision of the Services
- With effect from the date of this Agreement, Switch Aid shall, throughout the Term of the Agreement, provide the Services to the Client.
- The Services to be provided by Switch Aid shall be as set out in the Proposal and which may include any or all of the following:-
- obtaining Consumption Data on behalf of the Client;
- review of the Consumption Data;
- identification of potential suppliers of Utilities based on the Client’s Consumption Data;
- engagement with Utility Suppliers and conduct of tendering procedures, provision of information and management reporting to the Client regarding the proposed Utility Suppliers; and
- supporting the Client in the negotiation of Utility Contracts.
- Upon request, the Client shall provide Switch Aid with a signed Letter of Authority granting Switch Aid the exclusive right to enter into discussions with Utility Providers regarding the provision of Utility Services to the Client.
- The Client acknowledges and agrees that:
- Switch Aid are not acting as the Client’s agent in respect of the purchase of Utilities from any particular Utility Supplier;
- Switch Aid are not responsible for, and will have no Liability to you in respect of, or in connection with, the provision of any Utility Services to the Client;
- it is the Client’s responsibility to review and satisfy itself as to the terms of any Utility Contract;
- Switch Aid shall make no representations nor provide any advice on the terms of any Utility Contract. Switch Aid cannot accept any Liability to the Client in respect of any Utility Contract.
- any pricing or other information provided by Switch Aid to the Client in connection with the provision of Utility Services:
- is indicative only;
- does not constitute an offer by Switch Aid or any Utility Provider to supply Utility Services to the Client; and
- is subject to the Client entering into a valid and binding Utility Contract, to which Switch Aid shall not be a party.
- Switch Aid may supply to any Utility Provider any information, data or document which Switch Aid has received from the Client;
- any information the Client provides to Switch Aid in respect of its historic consumption of Utilities shall be accurate and complete in all respects, and the Client shall indemnify Switch Aid in respect of any failure by the Client to provide such information.
- Payment for Services
- Unless otherwise expressly agreed in writing, in consideration for the provision of the Services, Switch Aid shall be paid the Procurement Fee by the Utility Provider which the Client enters into a Utility Contract with.
- The Client shall provide Switch Aid with:
- such information as Switch Aid may reasonably request in order to verify the cost and status of your Utility Contract; and
- copies of any Utility Provider invoices and or any Utility Contract upon request.
- The Client shall not commit any act or omission which has the object or effect of preventing Switch Aid’s ability to receive a payment from the Utility Provider under clause 3.1.
- The Grant shall be paid to the Client’s nominated Good Cause in equal annual instalments over the duration of the term of the Client’s contract with the Utility Provider. Switch Aid shall not be obliged to pay any Grant to the Good Cause until Switch Aid has received the Procurement Fee and the Good Cause has provided evidence of their charitable or not for profit status. The first Grant payment shall ordinarily be made within 120 days of Switch Aid receiving the Procurement Fee.
- The amount of the Grant as set out in the Proposal is an estimate based upon the Client’s estimated future annual consumption. In the event the Client’s future consumption does not meet the estimated usage then the Grant may be reduced in proportion with the reduction in energy consumption by the Client.
- Switch Aid shall use all reasonable efforts to ensure the Good Cause receives the Grant. The Good Cause shall be required to report upon their expenditure of the Grant. Should the Good Cause fail to evidence their charitable or not for profit status; fail in their reporting obligations for a 1 year period or should the Good Cause ceases to trade then Switch Aid reserves right to pay the Grant to the Switch Aid Foundation.
- If the Utility Provider should reduce the Procurement Fee payable to Switch Aid at any time then Switch Aid shall be entitled to recalculate (in good faith) the Grant that they would have arisen in that period had these facts been known at the time the Grant was calculated. The Client shall, if so required by Switch Aid and without prejudice to Switch Aid’s other remedies, repay on demand the difference between such recalculated Grant and the Grant actually paid to the Client’s nominated organisation.
- The Client can change their nominated Good Cause upon providing at least three calendar months’ notice. Any Grants or instalments of any Grant arising during such notice period shall accrued to and be paid to the earlier nominated Good Cause.
- Client’s Obligations
- The Client shall use all reasonable endeavours to provide all pertinent information to Switch Aid that is necessary for Switch Aid’s provision of the Services.
- The Client may, from time to time, issue reasonable instructions to Switch Aid in relation to Switch Aid’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in the Agreement.
- In the event that Switch Aid requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
- If any consents, licences or other permissions are needed from any third parties such as landlords, Utility Companies or similar, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
- If the nature of the Services requires that Switch Aid has access to the Client’s property or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that Switch Aid has access to the same at the times to be agreed between Switch Aid and the Client as required.
- Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of Clause 3 of the Agreement shall not be the responsibility or fault of Switch Aid.
- The Client shall remain responsible for reviewing any meter operation agreements, data collection and aggregation agreements and arrangements.
- Switch Aid shall have the right, without further reference to the Client, to publicise the fact that the Client is, or was, a Client of Switch Aid and to utilise the Client’s name and logo in publicity materials in this respect. The Client agrees to Switch Aid describing in general terms the type of work Switch Aid has provided and the Grant provided for the Good Cause.
- Liability, Indemnity and Insurance
- Subject to clause 6.2, 6.3 and 6.4, Switch Aid’s total liability for any loss or damage caused as a result of its negligence or breach of the Agreement shall be limited to the Procurement Fee.
- Switch Aid shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by Switch Aid.
- Nothing in these Terms and Conditions nor in the Agreement shall limit or exclude Switch Aid’s liability for death or personal injury.
- This clause 6.4 sets out specific heads of excluded loss and exceptions from them:
- Subject to clause 6.3, the types of loss listed in clause 4.2 are wholly excluded by the parties.
- The following types of loss are wholly excluded:
- Loss of profits
- Loss of sales or business.
- Loss of agreements or contracts.
- Loss of anticipated savings.
- Loss of use or corruption of software, data or information.
- Loss of or damage to goodwill.
- Indirect or consequential loss.
- Wasted expenditure
- Additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with this agreement. These include but are not limited to consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials.
- The Client shall indemnify Switch Aid against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by Switch Aid) caused by the Client or its agents or employees.
- Each Party undertakes that, except as provided by sub-Clause 7.2 of the Agreement or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and for 2 years after its termination:
- keep confidential all Confidential Information;
- not disclose any Confidential Information to any other party;
- not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
- not make any copies of, record in any way or part with possession of any Confidential Information; and
- ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 7.1.1 to 7.1.4 of the Agreement.
- Either Party may:
- disclose any Confidential Information to:
- any Utility Provider or associated party;
- any sub-contractor or supplier of that Party;
- any governmental or other authority or regulatory body; or
- any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
- to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 184.108.40.206 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of Clause 7 of the Agreement, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
- use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
- disclose any Confidential Information to:
- The provisions of Clause 7 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
- Each Party undertakes that, except as provided by sub-Clause 7.2 of the Agreement or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and for 2 years after its termination:
- Force Majeure
- No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
- Term and Termination
- The Agreement shall come into force on the agreed Commencement Date and shall continue until the later of (i) 3 months; or (ii) 6 months from the date Switch Aid receives a Procurement Fee (or the last instalment of a Procurement Fee received by Switch Aid if it was paid in instalments), subject to the provisions of Clause 9 of the Agreement.
- Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
- any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 40 Business Days of the due date for payment;
- the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 20 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
- an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
- the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
- the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
- anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
- the other Party ceases, or threatens to cease, to carry on business; or
- control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of Clause 9, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
- For the purposes of sub-Clause 9.2.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
- The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
- Effects of Termination
- Upon the termination of the Agreement for any reason:
- Switch Aid shall be under no further obligations to pay the Grant to the Good Cause;
- all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
- termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
- subject as provided in Clause 10 of the Agreement and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
- each Party shall (except to the extent referred to in Clause 7 of the Agreement) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
- Upon the termination of the Agreement for any reason:
- No Waiver
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
- Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
- Assignment and Sub-Contracting
- Subject to sub-Clause 15.2, the Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
- Switch Aid shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of Switch Aid.
The times and dates referred to in the Agreement shall be for guidance only and shall not be of the essence of the Agreement and may be varied by mutual agreement between the Parties.
- Relationship of the Parties
Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
- Neither Party shall, for the Term of the Agreement and for a period of 3 months from its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement.
- Neither Party shall, for the Term of the Agreement and for a period of 3 months after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party.
- Third Party Rights
- No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
- Subject to Clause 15 of the Agreement, the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
- All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
- Notices shall be deemed to have been duly given:
- when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
- when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
- on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
- on the tenth business day following mailing, if mailed by airmail, postage prepaid.
- In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
- Entire Agreement
- The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
- Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
- Law and Jurisdiction
- The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
- Any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
SwitchAid Grants Process
All funds raised are passed to the chosen cause in the form of a Grant. Grants will be given out three times a year, at four monthly intervals. The access dates are as follows:
If you have a Grant available within any of these time periods, you will be notified and funds will be processed to you. Check the status and amounts of your grants at any time at “My Grants” within your SwitchAid portal.
You do not have to draw down the money at each Grant access date. For example, if you happen to miss the deadline or wanted to save for a bigger purchase, all monies will just be transferred over to the next access date.
We may require a small amount of evidence in the three months following the release of your Grant, to show that you have used the money for what you said it would be used for in the Grant application form.
This is because we are a registered not for profit (Community Interest Company) and need to prove what we are doing and how it is helping communities. so that we can keep this scheme running for years and years to come.
Your evidence could include photos or copies of receipts or invoices. For example:
if you used the money for renovations, a photo or two of the work being carried out and an invoice for the work carried out would be enough;
if you used the money for a fun day, photos of the set up of the day and maybe one or two photos of people present would be all we needed.
If we do not receive the evidence within a three-month window, we would not be able to release the next Grant. If you have been unsuccessful in returning your evidence, the grant will then run over to the next access date, where you will be able to claim it once the evidence is returned to us.
If we have not received your evidence or hear back from your organisation for longer then a 12 month period we will presume that you either no longer want the funds or are no longer operating. In this instance, we will either reallocate the funds to a new good cause of the switchers choosing or to a like-minded organisation.
We ask for your organisation’s bank account details at the point of processing your grant payment to enable us to get your funds to you. This information is restricted to:
- Bank name
- Account number
- Sort code
Mobile & VoIP Terms and Conditions
SwitchAid – Mobile & VoIP Services Terms and Conditions
The Customer’s attention is particularly drawn to the provisions of clauses 2, (Basis of Contract), 12 (Limitation of liability) and 13 (Termination).
The following definitions and rules of interpretation apply in this agreement.
Account: the Customer’s account for the provision of Services and/or Mobile & VoIP Equipment under the Contract, set up by SwitchAid which may or may not have a specific account number.
Administration Fee: the amount of £50 per Line.
Application form: any application form issued by SwitchAid to the Customer detailing the Services and subsequently signed by or on behalf of the Customer.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Buyout: has the meaning set out in clause 10.2.
Cancellation Fees: the Term Fees, the return of any Buyout paid by SwitchAid to the Customer, the return of any Deal Incentives paid by SwitchAid to the Customer and the recommended retail price (as at the Commencement Date) of any Mobile & VoIP Equipment provided by or on behalf of SwitchAid to the Customer and the Administration Fee.
Charges: the charges detailed at clause 8.
Commencement Date: means the date upon which the Contract is signed by or on behalf of the Customer (including any electronic signature).
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.8.
Contract: the contract between SwitchAid and the Customer that is made up of these Conditions and the Order for the supply of Services and/or Mobile & VoIP Equipment.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the party SwitchAid contracts with to provide the Services and/or Mobile & VoIP Equipment.
Deal Incentive: a monthly discount offered by SwitchAid to the Customer as against the charges under the Network Contract for the amount specified in the Order and for the period specified in the Order (where no period is specified in the Order the discount shall be payable until the Review point detailed in clause 15).
Delivery Location: has the meaning given in clause 3.4.
Fair Usage Policy: 2000 minutes to an UK landline or mobile & VoIP number in any calendar month where SwitchAid is providing MVNO Services. these may vary from time to time depending on the provider in which the actual fair usage policy can be found at the MVNO, or supplier website such as but not limited to Vodafone/EE/O2/Plan.com.
Force Majeure Event: has the meaning given to it in clause 17.
SwitchAid: means SwitchAid, trading as SwitchAid, Building 8 Vance Business Park, Gateshead, Tyne And Wear, England, NE11 9NE reg:07806677
Line: a mobile & VoIP communications telephone number commencing with the numbers 07.
Minimum Period: the minimum period of the Contract of 2 years from the Commencement Date or connection of the Services (whichever is the latter) or such other longer period as may be specified in the Order or the Network Contract (including, but not limited to, a period referred to in the Order as contract length, length, term, minimum term, period or contract period).
Mobile & VoIP Equipment: any mobile & VoIP or wireless device, handset, tablet, USB data drive, data card, memory card, SIM card or similar device or card provided to the Customer under the Contract and or the Mobile & VoIP Equipment Leasing Contract for use in connection with the Services.
Mobile & VoIP Equipment Leasing Contract: the mobile & VoIP equipment leasing contract between the customer and a third party whereby some or all of the Mobile & VoIP equipment detailed in the Order is provided to the Customer by a third party.
MVNO Services: means services whereby SwitchAid are leasing telephone and data spectrum from a Network Provider acting as a mobile & VoIP virtual network operator (under the name SwitchAid or any other name operated by SwitchAid) and the provision of telecommunications and data services which does not require the Customer to enter in to a separate Network Contract in addition to the Contract.
Network Contract: a contract entered or to be entered in to between the Customer and a Network Provider in addition to the Contract for the provision of Network Services
Network Provider: means a third party telecommunications network provider including, but not limited to EE Limited, Plan Communications Ltd, Vodafone Limited, Daisy Distribution, Daisy PLC or Telefonica UK Ltd (O2).
Network Services: the supply of telecommunications or data services provided by a Network Provider.
Order: the Customer’s order for the supply of Services and/or Mobile & VoIP Equipment, as set out in the Application Form or Purchase Order.
Purchase Order: any purchase order issued by SwitchAid to the Customer detailing the Services and subsequently signed by or on behalf of the Customer.
Services: the services supplied by SwitchAid to the Customer as set out in the Order including, but not limited to MVNO Services or the procurement of Network Services.
Small Business Customer: a Customer with not more than 10 employees
Term Fees: in respect of MVNO Services, the fees calculated by multiplying the remaining number of months of the Minimum Period by the monthly charges for the Services or £250 per Line whichever is the higher amount; or in respect of any Network Services, sixty per cent of the monthly fees payable under the Network Contract calculated by multiplying the remaining number of months of the Minimum Period by the monthly fees payable under the Network Contract or £250 per Line whichever is the higher amount.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of contract: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
2.1 The Contract starts on and is effective from the Commencement Date, shall renew in accordance with clause 15 and shall continue until terminated by either party in accordance with these Conditions.
2.2 Where applicable and where a Network Provider rejects the Network Contract and/or refuses to enter in to the Network Contract (on or after the Commencement Date), the Contract shall remain in full force and SwitchAid may elect to provide the services in place of the Network Provider (on an MVNO basis) or shall use reasonable endeavours to procure Network Services from an alternative Network Provider on similar terms to the Network Contract whereupon the Customer shall be obliged to co-operate in entering in to an alternative Network Contract. If the Customer refuses to sign an alternative Network Contract, contrary to this clause 2.2 or fails to do so within 14 days of a request by SwitchAid to sign an alternative Network Contract, SwitchAid shall be entitled to terminate the Contract and clause 14 shall apply.
2.3 Where a Network Provider insists on the payment of a deposit as a condition precedent to entering in to the Network Contract the Customer shall be liable to pay such deposit. If the Customer refuses to pay such deposit, contrary to this clause 2.3 or fails to do so within 14 days of a request by SwitchAid or the Network Provider, SwitchAid shall be entitled to terminate the Contract and clause 14 shall apply.
2.4 As part of SwitchAid’s credit management procedures, SwitchAid may at any time during the Contract require the Customer to pay a deposit or provide a guarantee as security for the payment of future invoices. If the Customer refuses to pay a deposit or provide a guarantee (or fails to do so within 14 days of a request from SwitchAid), SwitchAid shall be entitled to terminate the Contract and clause 14 shall apply.
2.5 SwitchAid offers no warranty in respect of mobile & VoIP signal coverage and both parties acknowledge that each of the major Network Providers advertise 98 per cent or more network coverage in the United Kingdom and such coverage cannot be verified by SwitchAid. The Customer acknowledges that prior to signing the Contract, the Customer has taken all reasonable steps to ensure that the mobile & VoIP network being connected to under the Contract or Network Contract has sufficient signal or coverage in the Customer’s location or locations where the Customer desires a reliable mobile & VoIP signal.
2.6 Notwithstanding clause 13 of these Conditions, SwitchAid may terminate the Contract, without any liability to the Customer, during the first 30 days from the Commencement Date for any reason whatsoever upon providing 7 days’ notice to the Customer.
2.7 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.8 Any quotation given by SwitchAid shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
2.9 All of these Conditions shall apply to the supply of both Services and Mobile & VoIP Equipment except where application to one or the other is specified.
2.10 The Customer acknowledges that the Contract is a business to business contract and warrants that s/he is acting in the course of his or her business, trade or profession.
3. Mobile & VoIP Equipment
3.1 The Mobile & VoIP Equipment to be provided under the Contract shall be specified in the Order. The Customer acknowledges that some or all of the Mobile & VoIP Equipment may be provided under a Mobile & VoIP Equipment Leasing Contract and the Customer is obliged to sign and return a Mobile & VoIP Equipment Leasing Contract pursuant to clause 7.
3.2 The provision of Mobile & VoIP Equipment is subject to availability.
3.3 Subject to clause 3.6 of these Conditions, the Mobile & VoIP Equipment shall be delivered within 3 months of the commencement date and if SwitchAid is unable to source or provide the Mobile & VoIP Equipment within such period, the Customer shall be entitled to have the Account credited to the equivalent value of SwitchAid’s trade purchase cost of the Mobile & VoIP Equipment. Such credit to be made in accordance with clause 9 of these Conditions as though it were a Deal Incentive.
3.4 The Mobile & VoIP Equipment shall be delivered to the location set out in the Order or such other location as the parties may agree (Delivery Location).
3.5 Delivery of the Mobile & VoIP Equipment shall be deemed completed on the second business day after posting by SwitchAid or the Network Provider or on the second business day following the Mobile & VoIP Equipment being collected from SwitchAid or the Network Provider from a courier with instructions to deliver to the Delivery Location.
3.6 Any dates quoted for delivery of the Mobile & VoIP Equipment are approximate only, and the time of delivery is not of the essence. No Mobile & VoIP Equipment will be dispatched until the Customer has provided porting access codes irrespective of any delivery date specified on the Order. SwitchAid shall not be liable for any delay in delivery of the Mobile & VoIP Equipment that is caused by a Force Majeure Event or delays caused by a third party manufacturer (or supplier) or the Customer’s failure to provide SwitchAid with adequate delivery instructions or any other instructions that are relevant to the supply of the Mobile & VoIP Equipment.
4. Quality of Mobile & VoIP Equipment
4.1 SwitchAid shall pass on the benefit to the Customer of any warranties it receives from the manufacturer of the Mobile & VoIP Equipment.
4.2 The Customer acknowledges that any attempt to repair, service or tamper with the Mobile & VoIP equipment may invalidate the manufacturer’s warranty.
5. Title and risk
5.1 The risk in the Mobile & VoIP Equipment shall pass to the Customer on completion of delivery.
5.2 Subject to clause 5.3, title to the Mobile & VoIP Equipment shall not pass to the Customer until the Contract is validly terminated in accordance with these Conditions and all sums due under the Contract, including but not limited to Cancellation Fees, have been paid by the Customer to SwitchAid.
5.3 Where the Customer has entered in to a Mobile & VoIP Equipment Leasing Contract, in addition to the Contract, the Customer holds the Mobile & VoIP Equipment as bailee and title to the Mobile & VoIP Equipment shall pass (if at all) in accordance with the terms of the Mobile & VoIP Equipment Leasing Contract.
5.4 Until title to the Mobile & VoIP Equipment has passed to the Customer, the Customer shall:
(a) maintain the Mobile & VoIP Equipment in satisfactory condition and keep it insured against all risks for its full price on SwitchAid’s behalf from the date of delivery;
(b) notify SwitchAid immediately if the Customer becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(d); and
(c) give SwitchAid such information relating to the Mobile & VoIP Equipment as SwitchAid may require from time to time.
5.5 If before title to the Mobile & VoIP Equipment passes to the Customer, the Customer becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(d), then, without limiting any other right or remedy SwitchAid may have:
(a) SwitchAid may at any time:
(i) require the Customer to deliver up all Mobile & VoIP Equipment in its possession and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Mobile & VoIP Equipment is stored in order to recover each item of Mobile & VoIP Equipment.
6. Supply of Services
6.1 In consideration of the Customer paying the Charges and fulfilling all of its commitments as set out in the Contract, SwitchAid agrees to supply and the Customer agrees to receive the Services and/or the Mobile & VoIP Equipment subject to the provisions of the Contract.
7. Customer’s obligations
7.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with SwitchAid in all matters relating to the Services and Network Services including, but not limited to, promptly signing a Mobile & VoIP Equipment Leasing Contract and/or a Network Contract where applicable;
(c) provide SwitchAid with such information and materials as SwitchAid may reasonably require in order to supply the Services (including, but not limited to, providing porting access codes to enable connection of the services), and ensure that such information is complete and accurate in all material respects;
(d) promptly notify SwitchAid of a change of address, change of registered office or change of trading location(s);
(e) where applicable, comply with all terms of the Network Contract and/or the Mobile & VoIP Equipment Leasing Contract including, but not limited to, the terms for payment of all charges and fees under the Network Contract and/or the Mobile & VoIP Equipment Leasing Contract.
(f) authorise the Network Provider to disclose all information to SwitchAid relating to the Network Contract;
(g) if provided with 15 or more mobile & VoIP devices under the Contract, set up on-line billing and not cancel on-line billing prior to the termination of the Contract;
(h) return to SwitchAid a hardcopy of the signed Contract and where applicable the signed Mobile & VoIP Equipment Leasing Contract within 14 days of the Commencement Date;
(i) within 30 days of the Commencement date, send to SwitchAid all mobile & VoIP phone handsets (together with any pac codes or words required to operate each handset) in the possession or ownership of the Customer which shall not be used or needed by the Customer for the provision of the Services under the Contract.
7.2 The obligations set out at clauses 7.1 (a) to (i) above are conditions of the Contract. In addition to any other remedies that SwitchAid may have for a breach of those conditions by the Customer, whether set out in the Contract or otherwise, if the Customer breaches condition 7.1 (i) the Customer shall be liable to pay £250 to SwitchAid for each handset that is retained by the Customer (or £250 where the Customer has failed to provide a pac code or word or any such pac code or word provided is incorrect). Where SwitchAid is liable to pay Deal Incentives, Termination Fees or any other sums to the Customer, it may elect to set off those monies due against any sums due from the Customer under this clause 7.2.
8. Charges and payment
8.1 In addition to the charges detailed at clause 8.2 of these Conditions, the price for the Services and Mobile & VoIP Equipment shall be the price set out in the Order or, if no price is quoted, the price set out in SwitchAid ‘s price list as at the Commencement Date. The Customer acknowledges that certain charges may be payable directly to the Network Provider and/or where applicable to a third party under the Mobile & VoIP Equipment Leasing Contract. The price payable for additional services and out of bundle charges (unless indicated as inclusive in the Order), including but not limited to, bolt on services, call features, calls to international numbers, calls to the Channel Islands, roaming charges, calls to service numbers, calls to premium rate numbers, calls to 08 & 09 numbers, calls to 0845 & 0870 numbers, calls to 0500 numbers, calls to mobiles, calls to retrieve messages, internet calls, calls to 074 numbers, calls to 070 numbers, calls to a personal numbering service, satellite calls, calls to or involving Mobile & VoIP or similar international call providers, calls above the Fair Usage Policy, information and paging services, data usage, text messages, picture or multi-media messages shall be the price specified in SwitchAid’s price list in force at the time such additional services or out of bundle services are utilised or network / supplier specified IE. Vodafone/o2/EE/Plan.com or MVNO provider which will be set out within said suppliers websites.
8.2 The Customer shall be liable to pay to SwitchAid:
(a) a fee of £250 per Line which is connected or to be connected under the Contract; and
(b) a consultation fee of £500 per account or cost centre. –
8.3 The Customer shall pay £30 for each porting access code (pac code) requested in respect of each and any Line connected under the Contract or Network Contract and if such a request is made during the Minimum Period, clause 14.2 shall apply.
8.4 SwitchAid reserves the right to:
(a) increase the Charges from time to time and shall provide the Customer with at least 7 days’ notice prior to such increase taking effect. For the avoidance of doubt, the Customer shall not be entitled to terminate the Contract upon any increase in Charges; and
(b) increase the price of the Mobile & VoIP Equipment, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Mobile & VoIP Equipment to SwitchAid.
8.5 SwitchAid may invoice the Customer for Charges under the Contract. Where applicable, Network Services shall be invoiced by and payable to the Network Provider. Where a Mobile & VoIP Equipment Leasing Contract has been entered in to, the provider of Mobile & VoIP Equipment under such contract shall invoice the Customer in accordance with the terms of the Mobile & VoIP Equipment Leasing Contract. SwitchAid may invoice on a monthly basis for MVNO Services.
8.6 The Customer shall pay each invoice submitted by SwitchAid:
(a) within 14 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by SwitchAid by way of direct debit, failing which a payment processing fee of £6 per invoice shall be payable by the Customer, and time for payment shall be of the essence of the Contract. Where the Customer cancels a direct debit mandate to SwitchAid a cancellation fee of £15 shall be payable in respect of each instance of cancellation.
8.7 The Customer shall be liable to pay the Charges whether the Services are being utilised by the Customer or a third party. This includes all Charges arising from unauthorised or fraudulent use.
8.8 Invoices shall be deemed to be undisputed and the Customer acknowledges that it shall not be entitled to dispute an invoice unless the Customer notifies SwitchAid in writing of any dispute (clearly identifying the reasons for the dispute) within 30 days of the date of the invoice.
8.9 All amounts payable by the Customer under the Contract, Network Contract or Mobile & VoIP Equipment Leasing Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by SwitchAid to the Customer, the Customer shall, on receipt of a valid VAT invoice from SwitchAid, pay to SwitchAid such additional amounts in respect of VAT as are chargeable on the supply of the Services or Mobile & VoIP Equipment at the same time as payment is due for the supply of the Services or Mobile & VoIP Equipment.
8.10 If the Customer fails to make a payment due to SwitchAid under the Contract by the due date, then, without limiting SwitchAid ‘s remedies under clause 13 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.9 will accrue each day at 4% a year above the Lloyds Bank’s base rate compounding quarterly.
8.11 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). SwitchAid may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by SwitchAid to the Customer.
9. Deal Incentives
9.1 Where a Deal Incentive is specified in the Order, subject to clause 9.2, SwitchAid shall reimburse (or provide a credit in the case of MVNO Services) the Customer the amount of any Deal Incentive upon the Customer first providing SwitchAid with a VAT invoice from the Customer to SwitchAid for the amount of the monthly Deal Incentive (the value of the Deal Incentive specified in the Order shall be inclusive of VAT). No invoice shall be required where SwitchAid are providing MVNO Services.
9.2 The Customer shall be liable to pay the Network Provider the full amount of all charges under the Network Contract irrespective of any Deal Incentive. Providing the Customer has not committed a breach of the Contract or any Network Contract or any Mobile & VoIP Equipment Leasing Contract and upon receipt of an invoice in accordance with clause 9.1, SwitchAid shall reimburse or credit the Customer for the amount of the Deal Incentive. The payment under this clause 9 shall be made monthly in equal instalments starting with the first payment within 90 days of receipt of the Customer’s invoice issued in accordance with clause 9.1 (or credit 1 month from the connection of the services in the case of MVNO Services) and ending at the Review point referred to in clause 15. For the avoidance of doubt, no Deal Incentive shall be due or payable after the Review point and if no Review is specified in the Order no Deal Incentive shall be due or payable during the second half of the Minimum Term. Where the terms of this clause 9 are inconsistent with the Order, this clause 9 shall prevail. If cashback/techfund and or hardware is agreed to be paid differently then set out in clause 9 and 10 a director’s guarantee may be required.
10.1 The Customer acknowledges that by entering in to the Contract and/or the Network Contract, the Customer may have to pay termination or other charges to a Network Provider or third party for cancelling or terminating a pre-existing contract with that Network Provider or third party.
10.2 The Order may specify a sum that SwitchAid is prepared to reimburse the Customer to cover some or all of the termination charges referred to in clause 10.1 (Buyout). Subject to clause 10.3 (or 10.4 in the case of MVNO Services), SwitchAid shall reimburse the Customer with the Buyout specified in the Order upon receipt of a VAT invoice from the Customer to SwitchAid for the amount of the Buyout (the value of the Buyout specified in the Order shall be inclusive of VAT).
10.3 Notwithstanding this clause 10, it shall remain the Customer’s liability to pay any termination or similar charges referred to in clause 10.1. Providing the Customer has not committed a breach of the Contract or any Network Contract or any Mobile & VoIP Equipment Leasing Contract (excluding any pre-existing contract for services similar to those provided under the Contract), and upon receipt of an invoice in accordance with clause 10.2, SwitchAid shall reimburse the Customer for the amount of the Buyout. The reimbursement under this clause 10 shall be paid monthly in equal instalments over the Minimum Period and the first reimbursement payment shall be made by SwitchAid within 90 days of receipt of the Customer’s invoice issued in accordance with clause 10.2.
10.4 Contrary to clauses 10.2 and 10.3, where SwitchAid is providing MVNO Services and providing the Customer is not in breach of the Contract, SwitchAid shall reimburse the Customer with the Buyout amount specified in the Order (upon receipt of a copy invoice relating to the Buyout from the Customer’s previous supplier) by way of a pro rata credit to the Customer’s invoices over 4 months. By way of example, if the Buyout is for £1000, SwitchAid shall credit the Customer’s invoice in the sum of £250 for 4 months.
10.5 Where SwitchAid, despite not being contractually obliged to do so, pays the Buyout sum whether in a lump sum or instalments, to the Customer up front as opposed to by way of reimbursement, such Buyout sum paid by SwitchAid to the Customer shall be paid over to the Network Provider in respect of the pre-existing contract without delay.
11.1 Each party undertakes that it shall not at any time during the Contract, and for a period of three years after termination of the Contract, disclose to any person any confidential information including, but not limited to, the business, affairs or charges of the other party, except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
12.1 Nothing in these Conditions shall limit or exclude SwitchAid ‘s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) any other matter in respect of which liability cannot lawfully be limited or excluded;
12.2 Subject to clause 12.1, SwitchAid shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; or
(g) any indirect or consequential loss.
12.3 Subject to clause 12.1, SwitchAid ‘s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the amount paid by the Customer to SwitchAid for Charges paid under the Contract.
12.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 (as amended) and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 (as amended) are, to the fullest extent permitted by law, excluded from the Contract.
12.5 This clause 12 shall survive termination of the Contract.
12.6 Subject to clause 12.1, SwitchAid and the Customer agree that the Contract shall not be rescindable on grounds of misrepresentation
13. Termination and Suspension: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1 Subject to clause 14.2 the Customer may terminate the Contract at any time by giving SwitchAid 30 days’ written notice.
13.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.3 Without affecting any other right or remedy available to it, SwitchAid may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract or Network Contract or Mobile & VoIP Equipment Leasing Contract on the due date for payment; or
(b) there is a change of control of the Customer.
13.4 Without affecting any other right or remedy available to it, SwitchAid may suspend the supply of Services, disconnect the Services or suspend all further deliveries of Mobile & VoIP Equipment under the Contract or any other contract between the Customer and SwitchAid if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(d), or SwitchAid reasonably believes that the Customer is about to become subject to any of them.
13.5 Without affecting any other right or remedy available to it, SwitchAid may suspend the supply of Services, disconnect the Services or all further deliveries of Mobile & VoIP Equipment under the Contract or any other contract between the Customer and SwitchAid if the customer fails to sign a Network Contract or pay a deposit contrary to clauses 2.2, 2.3 or 2.4.
13.6 Where the Services are suspended or disconnected under clauses 13.4 or 13.5, the Customer shall be liable to pay to SwitchAid a disconnection fee of £29 for each instance of disconnection where the Contract provides for 9 Lines or fewer and where the Contract provides for 10 or more Lines a disconnection fee of £3 per Line shall be payable.
14. Consequences of termination
14.1 On termination of the Contract the Customer shall immediately pay to SwitchAid all Charges together with all of SwitchAid ‘s outstanding unpaid invoices and interest and, in respect of Services and Mobile & VoIP Equipment supplied or Charges for which no invoice has been submitted, SwitchAid shall submit an invoice, which shall be payable by the Customer immediately on receipt;
14.2 Cancellation Fees will be payable by the Customer to SwitchAid if prior to the expiry of the Minimum Period:
(a) the Contract is terminated; or
(b) the Network Contract is terminated; or
(c) the Network Services are disconnected as a consequence of the Customer’s breach of the Network Contract; or
(d) the Mobile & VoIP Equipment Leasing Contract is terminated.
14.3 The Cancellation Fees payable in accordance with clause 14.2 shall be invoiced by SwitchAid to the Customer and shall be payable immediately upon receipt.
14.4 The Customer acknowledges that the Cancellation Fees represent a genuine pre-estimate of the loss suffered by SwitchAid due to early termination, having regard to the overall commercial deal between the parties and that the Cancellation Fees do not represent a penalty.
14.5 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.6 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
15.1 Where the Order specifies an upgrade or review point, SwitchAid shall review the Contract and/or the Network Contract and the monthly charges being paid by the Customer (Review). Following any Review, SwitchAid may elect to offer the Customer a new contract whereupon, if the Customer elects to accept the offer, the Customer shall sign a new Contract (New Contract) including a new Purchase Order or Application Form (New Order).
15.2 Where the Customer agrees to a New Contract, clause 14.2 shall not apply to the (old) Contract and the Customer will be bound by the terms of the New Order, including any new minimum term or period specified in the New Order.
15.3 Where the terms of this clause 15 are inconsistent with the Order, this clause 15 shall prevail.
15.4 Nothing in this clause 15 or the Contract obliges SwitchAid to provide any upgraded or new Mobile & VoIP Equipment or to reduce the Charges payable by the Customer upon conducting a Review. Any Mobile & VoIP Equipment and the cost of such Mobile & VoIP Equipment to be provided in the New Contract shall be specified in the New Order.
15.5 Unless the Customer has provided 30 days’ written notice to terminate the Contract prior to the expiry of the Minimum Period, the Contract shall automatically renew for a further period of 12 months (Renewal Period), whereupon no Deal Incentive shall be due and the Contract shall continue to renew for successive Renewal Periods until the Customer provides 30 days’ written notice to terminate. Clause 14.2 shall apply if the Contract is terminated prior to the expiry of any 12 month Renewal Period.
15.6 Clause 15.5 shall not apply to a Small Business Customer.
16. Dispute Resolution
16.1 The parties shall use their reasonable endeavours to resolve disputes arising from or in connection with the Contract (Dispute). If either party wishes to raise a Dispute, it shall notify the other party in writing (in accordance with clause 18.2) clearly identifying the reasons for the Dispute and providing copies of any supporting documentation that is relied on.
16.2 A Customer with no more than 10 employees may be able to take a Dispute to adjudication under the Ombudsman Services dispute resolution scheme. A copy of SWITCHAID’s complaints code is at www.SwitchAid.org
16.3 Nothing in this Contract prevents SwitchAid from seeking a legal remedy through the courts at any time. The time costs of SwitchAid Solicitor dealing with a Dispute (including but not limited to the recovery of Charges and/or Cancellation Fees) both before and during any court claim shall be payable by the Customer to SWITCHAID on an indemnity basis at the guideline rate for a band A fee earner specified at www.gov.uk/guidance/solicitors-guideline-hourly-rates and at the grade for where the Customer’s principal place of business is situated (Legal Costs). The Customer acknowledges that such Legal Costs are reasonable and payable notwithstanding rule 27.14 of the Civil Procedure Rules or any successor provision dealing with the recoverability of costs on the small claims track.
16.4 Any overdue invoice issued by SwitchAid to the Customer may be referred to a third party debt agency and the Customer shall be liable to pay such third party’s fees in addition to SwitchAid’s Legal Costs.
17. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
18.1 Assignment and other dealings
(a) SwitchAid may at any time novate the Contract or assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
(a) Any notice or other communication given by the Customer to SwitchAid under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid recorded delivery post or next working day delivery service at SwitchAid’s registered office or such other address where SwitchAid asks the Customer to send notices to.
(b) Any notice or other communication given by SwitchAid to the Customer under or in connection with the Contract shall be sent to the Customer’s contact email address specified in the Order (or such other primary email address of the Customer as SwitchAid may elect), or by post to the Customer’s registered office (if a company) or the address specified in the Order or any other address where the Customer requests SwitchAid to send notices to.
(c) Any notice or other communication shall be deemed to have been received: if delivered by hand or recorded deliver post or by a next working day delivery service, on signature of a delivery receipt; if sent by first or second class post (non recorded) at 9am on the second business day after posting; or if sent by email at the time of transmission.
(d) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
18.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
18.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
18.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty that is not set out in the Contract.
18.7 Third parties rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
18.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (in the case of SwitchAid to be signed by a director). I SwitchAid may change these Conditions from time to time and the varied or updated Conditions shall be available to view at SwitchAid.org Minor changes will take effect immediately upon the varied Conditions being posted at SwitchAid.org and material changes shall take effect 30 days after the varied Conditions have been posted at SwitchAid.org
18.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
18.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Cloud Phone VoIP Terms and Conditions
PLEASE NOTE THAT THE SERVICE SUPPORTS USE FOR EMERGENCY SERVICE CALLS ON REQUEST ONLY. IN ORDER TO ENABLE EMERGENCY CALLING WITHIN THE SERVICE, PLEASE CONTACT OUR HELP-DESK AND PROVIDE THE DEFAULT TELEPHONE NUMBER AND ADDRESS TO BE USED FOR EACH USER IN THE EVENT THAT AN EMERGENCY CALL NEEDS TO BE MADE. A SEPARATE TELEPHONE NUMBER AND ADDRESS IS REQUIRED FOR EACH USER MAKING EMERGENCY CALLS FROM OTHER LOCATIONS.
THE USE OF THIS SERVICE WILL RELY ON THE AVAILABILITY OF YOUR OWN DEVICES, HARDWARE, PHONE DATA NETWORK AND INTERNET PROVIDER AT ALL TIMES – ANY RESTRICTIONS IN ANY OF THE ABOVE SERVICES OR DEVICES WILL ALSO LIMIT THE QUALITY OF THE SERVICE.
The terms, conditions, and notices contained in these Terms & Conditions must be agreed to and accepted without qualification or amendment in order to obtain the Service as defined below. By using the Service, you hereby agree in full to all terms and conditions of this Agreement. If you do not agree to these terms and conditions, then please do not access or use the Service.
If you begin the sign-up process but fail to complete the process, we may contact you in an effort to help you complete the process. You hereby authorise us to contact you in this circumstance even if you ultimately decide not to sign up to the Service.
1.1 In this Agreement the following terms shall have the following meanings unless the context requires otherwise:
Act: means the Communications Act 2003.
Agreement: shall mean this document between Us and the You.
Application: means Cloud Phone VoIP and any other websites, administration tools and/or software applications to be provided by us, or our authorised partners, to you.
Artificial Inflation of Traffic: means any situation where the Service experiences unusual call patterns that are disproportionate to the overall amount of usage as would reasonably be expected.
Business Day: means any day which is not a Saturday or Sunday or a public bank holiday in England.
Call: means a signal, message, voicemail or communication which can be silent, visual (including text and data) or spoken.
Caller: a person who ultimately uses the Service through the Customer.
Confidential Information: has the meaning set out in clause 15.1.
Customer Information: means any information, including (without limitation) any routing destinations, images, audio, audio-visual, text or other information or content that relates to the Customer’s use of the Service.
Controller: has the meaning set out in GDPR.
Data Protection Legislation: in relation to any Personal Data which is Processed in the performance of this Agreement, the Data Protection Act 1998 and EU Data Protection Directive 95 / 46 / EC (prior to 25 May 2018), GDPR (on and after 25 May 2018), the Investigatory Powers Act 2016, Telecommunications (Lawful Business Practice), the Privacy and Electronic Communications Directive 2002 / 58 / EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003 / 2426), in each case together with all laws implementing or supplementing the same and any other applicable or equivalent data protection or privacy laws, and all other applicable law, regulations and codes of conduct relating to the processing of personal data and privacy, including the guidance and codes of practice issued by a relevant Supervisory Authority.
Data Subject: has the meaning set out in GDPR.
Emergency Call: means a Call from a Caller to the emergency services made by dialling 999 or 112.
GDPR: the General Data Protection Regulation (EU 2016/679).
Inappropriate Content: any content that infringes any applicable laws, regulations or third party rights (such as, for example, material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights or the Act).
Intellectual Property Rights: means all intellectual property rights (including without limitation, patents, trademarks, copyrights, designs, rights in databases, user data, rights in and to know-how and Confidential Information (in each case whether registered or unregistered)) and any and all applications for the same.
International Number: means a Number outside of the United Kingdom which is available for international regions at an additional monthly charge to normal Numbers as published at https://switchaid.org/charity-voip-pricing/.
Insolvency Proceedings: means going into administration, administrative receivership, liquidation or receivership or becoming unable to pay debts as they fall due within the meaning of section 123 of the Insolvency Act 1986 or suffering any similar or analogous action in consequence of debt.
Network: means the network provided by us or any other third-party network supporting the Service.
Number: means any number specifically requested by or allocated to the Customer for the provision of the Service to Callers and includes VIP and International numbers.
Personal Data: has the meaning set out in GDPR and relates only to personal data, or any part of such personal data, in respect of which you are the Controller and in relation to which we are providing services under this Agreement.
Personal Data Breach: has the meaning set out in GDPR.
Premium Features: means any additional features and bolt-on extras you may add to your Service from time to time.
Processing and Process: have the meaning set out in GDPR.
Service: the service provided to you by us as described above.
Service Fee: means any charge in respect of the Service levied by us from time to time to you.
Software: any software used by us, or any party acting on our behalf in fulfilling its obligations under this Agreement or otherwise.
Special Categories of Personal Data: those categories of data listed in Article 9(1) GDPR.
Supervisory Authority: means (a) an independent public authority which is established by a Member State pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Legislation.
Third Party Information: means information, audio, video, graphics, sound, music, photographs, software, data, databases, records, and any other materials (in whatever form) not owned or generated by or on behalf of the Customer, published or otherwise utilised or made available using the Service.
Users: means any user within your business who you authorise to use this Service.
Usage Rates: means the charges incurred by you calculated against the usage based pricing which can be found at https://switchaid.org/charity-voip-pricing/
VIP Number: means a Number available at an additional monthly charge to normal Numbers and it is purchased for a minimum period of 12-months in accordance with clause 5.7.
1.2 Clause and schedule headings do not affect the interpretation of this Agreement.
1.3 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this Agreement.
1.4 Words in the singular include the plural and in the plural include the singular.
1.5 A reference to a particular law is a reference to it as it is in force at the date of this Agreement taking account of any amendment, extension, application or re-enactment and including any subordinate legislation in force at the date of this Agreement made under it.
- Our Obligations
2.1 We shall provide the Service to you in consideration for the due and timely fulfilment of the Customer’s obligations under this Agreement.
2.2 Use of the Service is at all times subject to the terms and conditions of this Agreement and by using the Service, the Customer confirms their acceptance of, and agrees to be bound by, this Agreement.
2.3 We reserve the right to amend or alter in any way these terms and conditions or charges for the Service at any time. We shall make reasonable endeavours to notify the Customer of any such changes, including making notice of the same to the Customer, but any change shall take effect even if the Customer fails to receive such notice.
2.4 We shall provide reasonable endeavours to manage and maintain a professional Service, Network and Application.
2.5 We shall grant you a non-exclusive, non-assignable or transferable right to use the Service in accordance with these terms.
2.6 We shall provide support to you for the Service via our help-desk and online knowledgebase.
- Customer Obligations
3.1 The Customer may only use the Service for lawful purposes and at all times in accordance with the Act.
3.2 The Customer will not, nor will the Customer authorise or permit any other person to, use the Service or the Application:
to send or receive any Inappropriate Content or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offence or otherwise be unlawful;
to create any Artificial Inflation of Traffic in anyway;
to sell, or offer to sell goods or services which are in violation of any laws, regulations or codes of practice. The Customer shall take such corrective action as we may require in such circumstances promptly following notification from us.
to pretend to be a party which it is not or use the Service to falsely represent another party.
3.3 The Customer warrants that Customer Information is and will remain accurate and will not include any Inappropriate Content or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offence or otherwise unlawful including the breach of any Intellectual Property Rights of any other person. We reserve the right to remove such content from the Service, Application and Network where, in our sole discretion, we suspect such content to be in breach of this clause 3.3.
3.4 The customer will be solely responsible for the accuracy, completeness, design, creation, maintenance, and updating thereof of all Customer Information. We shall not be liable for any errors or inaccuracies in any Customer Information
3.5 The Customer shall be responsible for obtaining all necessary licenses and consents required to use Service and the Customer warrants that such licences and consents have been obtained and will be subject in this regard to the indemnity at clause 12.
3.6 The Customer shall permit us to document you as a client case study or reference client and to use your name in any publicity material we may produce without first referring any such material to you for approval.
3.7 The Customer shall provide us with any assistance we require in relation to any query or enquiry in relation to the Service howsoever arising.
3.8 The Customer shall ensure it does not use the Service:
excessively and beyond what we deem is reasonable but will use its reasonable endeavours to actively promote the Service to its Callers;
in a way which imposes an unreasonable or disproportionately large load on our infrastructure or the Service;
for automated, high volume or otherwise excessive call-forwarding, auto-dialling and/or call-blasting activities; and/or
to make automated, continuous, extensive or excessive calls using the Service beyond what we consider (at our absolute discretion) to be reasonable business use.
3.9 The Customer will not sell or re-sell the Service to any third party.
3.10 The Customer will not use or associate the Service with any unsolicited telemarketing activities (“Spam”) and agrees to pay us a fee of £25 for each Spam complaint received by us. This will be charged for and applied to your Usage Rates and charged to the payment card you used to register for the Service.
3.11 The Customer warrants that the name, email address, phone numbers, postal address and payment information (where required upfront) that the Customer provides when the Customer registers for the Service is correct and the Customer agrees to update its account immediately in the event of any changes to such details.
3.12 The Customer warrants that it possesses the legal right and ability to enter into this Agreement and to use the Service in accordance with this Agreement.
3.13 The Customer confirms that the person contracting on behalf of the Customer has authority to bind the Customer in relation to the Customer’s purchase of the Service.
3.14 Any breach of this clause 3 by the Customer shall be deemed to be a material breach of this Agreement and shall entitle us to immediately terminate the Agreement and, for this purpose, it shall be irrelevant whether the Customer was aware of the content of any material so transmitted or not. Notwithstanding and in addition to clause 8, we may suspend the Service without notice with immediate effect if, in our reasonable opinion, the Customer is in breach of this clause 3 and we may refuse to restore the Service until the Customer gives us an acceptable assurance that there will be no further contravention.
3.15 The Customer is responsible for notifying any applicable terms of the Service to its Users and for ensuring that its Users comply with such terms.
3.16 In the event that we suspect that the Customer has breached this Agreement, at our absolute discretion we reserve the right to:
suspend and/or terminate the Customer’s access to the Service immediately without notice; and/or
modify the Customer’s pricing plan for access to the Service to reflect any excessive use of the Service or abuse of billing periods to avoid and manipulate payment to us, including, without limitation, converting the Customer’s pricing plan to a fully-metred usage plan and charging pro rata for Service access.
3.17 Each Customer must have their own Cloud Phone VoIP account and sharing of user accounts is not permitted in any circumstances.
4.1 Other than as cannot be excluded in law, we expressly exclude all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose in relation to the provision of the Service.
4.2 We do not warrant that the Service will be error and or virus free or operate without disruption or is compatible with all equipment and software configurations.
4.3 The full extent of our liability in respect of the provision of the Service is as set out in clause 10.
- Service Specific Conditions
5.1 Number allocation – once you have registered for the Service you shall be allocated or can select from us your Numbers at random to use in conjunction with the Service and for your Callers to contact you on in accordance with the terms of this Agreement.
5.2 Number usage – where the “Free” service is concerned (see clause 7.1), if you do not use the Service or your Number for a period of over 6-months we reserve the right to cancel the Service and re-allocate your Number back to stock for potential re-use by another party in the future.
5.3 Number testing – It is your responsibility to ensure that the Number works correctly when being diverted to the Customer Information and all equipment you have is in full working order.
5.4 Call and voicemail recording – subject to termination of this Agreement we will store any recorded Calls for as long as you state you need them accessible within the Application of the Service for that period only. Any recordings stored will be held in accordance with Data Protection terms specified in clause 13 and then deleted unless you download and store them yourself.
5.5 Emergency calling – you will NOT be able to make Emergency Calls from the Service unless you contact the help-desk to enable Emergency Calls within the Service. If you do request that we enable Emergency Calls for you within the Service, you must provide the default telephone number and address to be used for each User in the event that an Emergency Call needs to be made. A separate telephone number and address is required for each User making Emergency Calls from other locations.
5.6 Number porting into the Service – should you wish to port any existing Number into the Service then you must contact us via firstname.lastname@example.org to complete the required consent paperwork to complete this process, we will then handle this for you. There will be an admin charge payable of at least £20 per number but this will be agreed with you in writing prior to any number being ported.
5.7 Number porting away – should you wish to port any existing Numbers away from the Service then you must contact your new service provider to request this. We will typically receive instruction from them within 10-days to action this request. Prior to contacting your new provider, you will need to contact us at email@example.com in order for us to provide the information necessary for you to submit to your new provider when initiating the port. We cannot however guarantee that your new service provider will have the ability to port in your Number. There will be an admin charge payable of at least £10 per Number and for VIP Numbers there will be a charge payable calculated as any months remaining from the 12 month minimum duration multiplied by the monthly VIP Number fee according to https://switchaid.org/charity-voip-pricing/ but this will be confirmed with you in writing prior to your number(s) being ported away.
5.8 Support – we will provide you with support facilities for the Service through the Application, however, should you need to raise a support query with us directly email firstname.lastname@example.org.
5.9 Service related communications – we will send you updates about the Service, these will include new feature updates, service updates, support updates and other general communications at our discretion. If you do not want to receive these, you can opt-out at any stage.
5.10 Marketing communications – we will occasionally send you carefully selected marketing communications, if you do not want to receive these you can opt-out at any stage. Opting out of these marketing communications will not impact any Service related communications and you will still receive these.
5.11 If you select functionality relating to the Telephone Preference Service (TPS) when signing-up for the Service or otherwise during your use of the Service, this will prevent you from making any telephone calls to telephone numbers which appear on the latest Telephone Preference Service product data file. You acknowledge that the accuracy of the Telephone Preference Service functionality is dependent on the accuracy (or otherwise) of the information and database access provided to us by the Telephone Preference Service (or its agent or subcontractor), and, subject to clause 10.1 below, we shall not have any liability for any inaccuracy or omissions from such data and information provided to us. Further detail about the rules of the TPS can be found at https://ico.org.uk/for-organisations/guide-to-pecr/electronic-and-telephone-marketing/telephone-marketing/
6.1 You agree to pay the Service Fee for your use of the Service at the prices disclosed in the Application.
6.2 You acknowledge that prices disclosed could be subject to change and we will do our best to notify you of such changes and providing you as much notice as possible. We, as additional features to the Service, will add to the things which you can pay for within the Service Fees. These will always be features you are in control of and you can use them or not as you prefer.
6.3 All pricing disclosed on the Application will be invoiced and paid in the currency you choose when signing up for the Service, and is exclusive of value added tax (VAT) or other sales, import or export duties or taxes (if applicable) and this will be added at the point of payment.
6.4 All charges and VAT invoices for the Service will be emailed to you.
6.5 When you first sign-up to the Service we will ask for your payment card information and, subject to clause 6.7, payments will be pre-authorised.
6.6 You will be able to view all current logs, Usage Rates and amend and/or update Customer Information in the Application.
6.7 Invoices will, other that in respect of the period covering the free trial period, be for periods of one month and will be issued automatically by charging the payment card used to register for the Service on the date of such invoice. Changes made to your subscription during your monthly billing period will be calculated pro-rata for the remainder of the period and included on your next monthly invoice. If you cancel the Service through the Application you will automatically stop charges with effect from the end of the then current month and after settlement of that month’s charges based on Usage Rates and any pro-rata charges for changes made to your account during the month. Please note that your Service will not work if you do not have a valid credit card with us and/or terminate the service and you will not be able to accept Calls on your Number through the Service.
6.8 We will not issue refunds for any reason on the Service.
6.9 If your payment card fails to make a complete payment to us or we experience any payment card fraud and/or chargebacks then we have the right to immediately suspend and/or terminate the Customer’s account and the Service shall immediately cease.
6.10 If the Customer subsequently makes a valid payment to us then the Service will be re-instated and we shall make all reasonable endeavours to restore all data collected by us for the Service provided to the Customer prior to a termination. If the Customer does not make a payment within 2 weeks then all such Customer data shall be deleted by us and the account terminated and Number(s) reclaimed by us and returned to stock for potential re-use by another person.
6.11 The Customer must not abuse or manipulate the free trial period and/or the billing period to avoid paying for any Service Fees due to us. If we suspect, at our absolute discretion, that the Customer is abusing such periods, we reserve the right to suspend and/or cancel the Customer’s use of, and access to, the Service without notice.
- Service Provision
7.1 Our service level provisions are set out at https://switchaid.org/charity-voip-pricing/ and we have two paid for plans known as the “Unlimited” Plan and Pay as you Go (PAYG) Plan. We may also offer a “Free” service which is operated in conjunction with selected partners and/or promotions.
7.2 The Free service is a free service to which the terms and conditions set out herein shall apply save where not applicable. For the avoidance of doubt, the Free service is an inbound call only service and you will not be able to make outgoing calls using this service.
7.3 The Unlimited and PAYG service are paid for service subscriptions, chargeable monthly as per the latest pricing lists set out at https://switchaid.org/charity-voip-pricing/. On the PAYG plan you will be charged for any and all additional usage based on our Usage Rates.
7.4 Notwithstanding any other provision of these terms and conditions, if you do not choose to add card payment details before the end of the trial, your account will be suspended. You may add payment details up to 30 days post-trial period, at which point the account will activate immediately and the amount of Premium Features and Usage Rates will be invoiced in accordance with clause 6.7.
7.5 Should you terminate the free trial within the free trial period you will not be billed for any usage as all features enabled within the trial period are included within the trial.
8.1 The Customer shall not attempt to circumvent system security or access the source code of the Software or the Application of the Service.
8.2 The Customer shall keep confidential any passwords or other security information relating to the Software or the Application of the Service.
8.3 The Customer is responsible for the security and proper use of all user IDs, passwords, used in connection with the Service and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised persons.
8.4 The Customer must immediately inform us if there is any reason to believe that a user ID or password issued by us has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
8.5 We reserve the right to suspend access to the Service if at any time we consider that there is or is likely to be a breach of security or if the Customer fails to comply with our instructions or requests in relation to security matters.
8.6 We reserve the right (at our sole discretion) to require the Customer to change any or all of the passwords used by the Customer in connection with the Service.
- Term and Termination
9.1 To terminate the Agreement the Customer must either cancel the account through the Application process or by emailing email@example.com with formal confirmation of cancellation served in writing pursuant to clause 16 and we shall terminate the Agreement immediately during the free trial period or the then current month, as the case may be, subject, in the latter case, to being given 30 days notice and to receipt of such written confirmation prior to this time.
9.2 If you terminate the Agreement of your own choosing then you will lose your Number(s) permanently.
9.2 On termination of the Service any balance due on termination will be invoiced and collected in accordance with clause 6.
9.3 We may terminate this Agreement, without notice, if you are in breach of any part of this Agreement or suffer Insolvency Proceedings, although your obligation to pay then current charges shall survive termination of this Agreement.
- Limitation of Remedies and Liability: Your attention is particularly drawn to this clause
10.1 Nothing in this Agreement shall operate to exclude or limit either party’s liability for:
death or personal injury caused by its negligence; or
any other liability which cannot be excluded or limited under applicable law.
10.2 We shall not be liable to the Customer or any third party for any indirect, incidental, sequential or consequential loss or damages arising under this Agreement (including without limitation) loss of profits, business, earnings or opportunity arising under or in connection with this Agreement.
10.3 Other than as stated in clause 10.1, we shall not be liable to the Customer in contract, tort (including negligence) or otherwise in relation to this Agreement.
10.4 The provisions of this Agreement and the rights and remedies of the parties under this Agreement are cumulative and are without prejudice and in addition to any rights or remedies a party may have at law or in equity.
10.5 The Customer accepts that we are neither obligated nor able to edit, review or modify Customer Information or Third Party Information and that we do not examine the use to which the Customer puts the Service. However, we reserve the right to remove any Customer Information or Third Party Information if we reasonably believe such information breaches any laws or regulations or any third party´s rights.
10.6 We exclude all liability of any kind in respect of Customer Information, Third Party Information or any other material which can be accessed using the Service and are not responsible in any way for any goods (including software) or services provided advertised, sold or otherwise made available by means of the Service.
- Intellectual Property Rights
11.1 All Intellectual Property Rights in Customer Information (“Customer Intellectual Property”) are and shall remain the property of the Customer and its licensors.
11.2 Except as provided for at clause 11.1, all Intellectual Property Rights in the Service and/or the Software, Application, Services and any supporting or associated material relating to the Software, the Application or the Service developed by us in fulfilling our obligations under this Agreement or in connection with this Agreement, whether the Software, the Application or the Service or material is particular to the Customer or not, and any other material provided to or made accessible to the Customer by us as a result of this Agreement (“Our Intellectual Property”) are and shall remain our sole property.
11.3 The Customer grants to us a non-transferable, royalty free licence to use the Customer Intellectual Property for the purposes of performing our obligations under this Agreement.
11.4 We grant the Customer a non-transferable, non-exclusive, royalty free licence to use Our Intellectual Property for the purposes of performing your obligations to us under this Agreement.
- Third Party Transactions
12.1 The Customer shall remain solely responsible for any transactions of any kind entered into between the Customer and Users or any other third parties accessing or acting in reliance on the Service, or any information on the site. We will not be a party to or in any way responsible for any transaction between the Customer and a Buyer or other third party.
12.2 The Customer agrees to indemnify and keep us indemnified from any claim brought by a third party resulting or arising from the Customer´s use of the Service, any breach of its obligations under clauses 3 and 4 of this Agreement by the Customer, our hosting of the Service, or any claim brought by a third party resulting or arising in any way from any Customer information or any other material provided by the Customer to us.
12.3 The indemnities at clause 12.2 includes all costs, expenses, damages, awards, fees (including reasonable legal fees) and judgments finally awarded against us arising from any relevant claims. Furthermore, the Customer agrees it will provide us with notice of such claims, gives us full authority to defend, compromise or settle such claims and to give all reasonable assistance necessary to defend such claims, at the Customer´s sole expense. We agree that any actions taken in respect of such claims will be taken in consultation with the Customer.
- Data Protection
13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
13.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and we the Processor of any Personal Data. We Process Personal Data in accordance with the following scope, nature and purpose:
Nature and purpose of the processing of Personal Data
In order that we can provide our Services to you in accordance with this Agreement
Subject matter of the Processing of Personal Data
For our provision of Services to you as our customer, as set out in this Agreement.
Duration of the Processing of Personal Data
The term of our contract with you in accordance with this Agreement, until we delete that data in accordance with this Agreement.
Categories of Personal Data being shared between you and us
Data relating to individuals provided to us by you or any person you authorise (or direct) to access or use the Services (or at your direction).
Types of Data Subject in respect of whom we Process Personal Data
The Data Subjects in respect of whom you use our Services and data is sent (or provided) to us through those Services, by you, at your direction or with your authorisation.
13.3 Each party confirms that it holds, and during the term of this Agreement will maintain, all registrations and notifications required in terms of the Data Protection Legislation which are appropriate to its performance of the obligations under this Agreement.
13.4 We will:
Process Personal Data only on documented instructions from you, unless required to do so by Data Protection Legislation or any other applicable law to which we are subject; in such a case, we shall inform you of that legal requirement before Processing, unless that law prohibits us to so inform you;
ensure that persons we authorise to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
take all measures required pursuant to Article 32 of the GDPR in respect of security of Processing;
subject to clause 13.4 i) and clause 13.5, not commission any subcontractor in respect of Processing Personal Data without your prior written consent (such consent not to be unreasonably withheld or delayed), and ensure that any such subcontractor we commission complies with the provisions of this clause 13 as if it was a party to this Agreement;
taking into account the nature of the Processing, assist you by putting in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Legislation, to the extent that such requests relate to this Agreement and our obligations under it;
assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of Processing the Personal Data and the information available to us;
at your option, delete (to the extent practicable) or return all the Personal Data to you after termination of this Agreement or otherwise on your request, and delete existing copies (to the extent practicable) unless applicable law requires our ongoing storage of the Personal Data;
make available to you all information necessary to demonstrate our compliance with this clause 13d, and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you; and
inform you immediately if, in our opinion, an instruction from you infringes (or, if acted upon, might cause the infringement of) Data Protection Laws. Subject to clause 10.1, we shall not have any liability in respect of any instruction from you that breaches (or causes a breach of) Data Protection Legislation to the extent that we could not reasonably have been aware, or could not reasonably be expected to have been aware, that such instruction would breach (or cause a breach of) Data Protection Legislation.
13.5 Each party will notify the other party as soon as is reasonably practicable if it becomes aware of a Personal Data Breach relating to either party’s obligations under this Agreement.
13.6 You shall undertake appropriate data protection impact assessments to ensure that Processing of Personal Data complies with Data Protection Legislation. We will provide you with reasonable assistance, where necessary and upon your request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.
13.7 It is your responsibility to ensure that Personal Data is dealt with in a way that is compliant with Article 5(1) of the GDPR.
13.8 You shall ensure that:
you are able to justify the Processing of Personal Data in accordance with Article 6(1) of the GDPR (including, where applicable, obtaining any and all consents of Data Subjects required in order to commence the Processing), and that you have recorded or documented this in accordance with the record keeping requirements of the GDPR;
where Personal Data falls within the Special Categories of Personal Data, Article 9(2) of the GDPR applies to that Personal Data before Processing takes place;
where Article 9(2) of the GDPR does not apply to any Personal Data falling within the Special Categories of Personal Data, no such data will be sent to us; and
you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of this Agreement.
13.9 In the event that we:
comply with your instructions in respect of Processing, we shall not have any liability (subject to clause 10.1) for any damage caused by Processing that Personal Data, or for any consequences in the event that such Processing otherwise infringes Data Protection Legislation, to the extent that such damage or consequences result from our compliance with such instructions; and/or
refuse to comply with your instructions in respect of Processing due to concerns that compliance will cause a breach of Data Protection Legislation, we shall not have any liability (subject to clause 10.1) for any failure to follow such instructions.
13.10 Each party agrees to indemnify, and keep indemnified and defend at its own expense, the other party, against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable, due to any failure by the first party or its employees or agents to comply with this clause 13.
13.11 You authorise the cloud phone voip software provider to allow the engagement of third parties as subcontractors for the purposes of Processing; in the event that we contract with such subcontractors in accordance with the requirements of Data Protection Legislation, your entry into this Agreement will constitute your prior written consent to that subcontracting by us in respect of the relevant Processing. Information about the subcontractors that we engage for Processing purposes can be found at www.circleloop.com/gdpr.
13.12 In the event that we engage any new subcontractor for the purposes of Processing during the term of this Agreement, we will inform you at least 30 days in advance of the engagement commencing, together with relevant information relating to that subcontractor and its operations. You may object to that engagement by contacting us, and, as your sole and exclusive remedy for such engagement, terminate this Agreement in accordance with clause 9.1.
13.13 Please see our Privacy and Cookies Policy which forms part of this Agreement and set out how we Process certain personal data (as defined in GDPR) as a Controller.
13.14 Either party may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
- Force Majeure
If either party is unable to perform any obligation under this Agreement because of a matter beyond that party’s reasonable control including, without limitation, lightning, flood, exceptionally severe weather, fire, explosion, war, acts of terrorism, civil disorder, industrial disputes (whether or not involving employees of either party), breakdown of plant or machinery, default of suppliers or sub-contractors or acts of local or central government or other competent authorities, or events beyond the reasonable control of suppliers to either party, that party will have no liability to the other for that failure to perform.
15.1 Each party shall keep confidential (and ensure that its employees keep confidential) all information concerning the business, finances, technology, affairs, clients, marketing plans of the other party and other information which is identified as such or is confidential by its nature (including, but not limited to, the terms of this Agreement) (“Confidential Information”).
15.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
15.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, or in the case of us the employees of a any other group company or their suppliers who need to know the information. Confidential Information may not be disclosed to any other party without the written consent of the other party.
15.4 The obligations set out in this clause 15 shall not apply to Confidential Information which the receiving party can demonstrate, with written evidence, came into the public domain otherwise than through a breach of this clause 15 or which is required by law to be disclosed.
15.5 The obligations of confidentiality in this clause 15 shall not be affected by the expiry or termination of this Agreement, but will remain in effect for 2 years after the termination of this Agreement
A notice given under this Agreement:
16.1. shall be in writing in the English language (or be accompanied by a properly prepared translation into English);
16.2 shall be delivered by email with formal written confirmation served by hand or prepaid first class post to the registered office of the other party or to such other address as may from time to time be notified to the other party in writing.
16.3 Any notice given under this clause 16 shall be deemed to have been received:
if by email, on receipt of the email subject to receipt of formal written confirmation in due course; or
on the date of delivery if delivered by hand prior to 5.00 pm on a Business Day, otherwise on the next Business Day following the date of delivery; or
on the second Business Day from and including the day of posting in the case of pre-paid first class post.
17.1 The Customer will not assign, resell, sublease or in any other way transfer the Service (or any element thereof), or any of its rights or obligations under the terms of this Agreement without our prior written consent.
17.2 Contravention of this restriction in any way, whether successful or not will entitle us to terminate the Service and/or the Agreement immediately.
17.3 We may assign or transfer its rights or obligations under this Agreement by written notice to the Customer.
- Entire Agreement
18.3 No person or undertaking that is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement.
18.4 The Customer may not vary this Agreement without the written consent of us.
18.5 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.6 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18.7 Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting enter party as agent of the other for any purpose whatsoever. No party shall have the authority to bind the other party or to contract in the name of, or create a liability against, the other party in any way or for any purpose.
18.8 This Agreement and any disputes or claims (whether contractual or non-contractual) arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
18.9 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) that arises out of or in connection with this Agreement.