TERMS AND CONDITIONS
1.1 In these Conditions the following words shall have the following meanings:
“Calls2Account” means the inbound automated call tracking system provided by 10ACT and used by the customer.
“Commencement Date”means the date on which the Supplier commences the supply of the Systems and Services.
“Conditions” means these conditions relating to the Systems and Services;
“Contract”means the contract for the provision of the Systems and Services, which comprises these Conditions.
“Customer”means the person for whom the Supplier has agreed to provide the Systems and Services in accordance with the Contract.
“Estimate” means any written proposal document provided by 10ACT.
“Fees”means the Fees payable by the customer;
“Intellectual Property”means any and all patents, registered trademarks, registered designs, applications for any of the foregoing, database rights, trade and business names, unregistered trade names, logos, know-how, trade secrets, copyrights, rights in unregistered design, inventions, rights under licences and consents in relation to any such rights and rights of the same or similar effect or nature, together with all goodwill attaching or relating thereto, in any part of the world (whether or not capable of protection by registration);
“Parties”means the Supplier and the Customer and “Party” means any one of them;
“Services”means the provision by the Supplier of such services as requested by the Customer
“Supplier”means 10ACT Ltd trading as TrackBack, 8 Waldegrave Road, Teddington, London, TW11 8HT.
“System”means the TrackBack tracking platform and any associated products as detailed in our proposal.
“Telecoms Supplier”means such person or persons appointed by the Supplier from time to time for the provision of services, including but not limited to telecommunication routing and reporting. For the avoidance of doubt, the Supplier shall be entitled to change Telecoms Supplier at any time without notice to the Customer;
“Term”means the agreed contract period;
“TrackBack” means the communication tracking platform provided by 10ACT and used by the customer.
“User Guide” Means operating instructions for TrackBackplatform as supplied by 10ACT.
“Writing”includes facsimile transmission, electronic mail and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.0 TERMS OF CONTRACT
2.1 This Contract shall apply for the supply of Services by 10ACT to the Customer to the exclusion of all other terms and conditions or representations including any terms and conditions or representations which the Customer may purport to apply under any purchase order, confirmation order or similar document.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Supplier and the Customer.
2.3 Any typographical, clerical or other omission in any sales literature, the Handbook, quotation, Fees list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
2.4 A contract shall exist between the parties, on receipt by the Customer of these Conditions or Written acceptance by the Customer of these Conditions.
2.5 This Agreement shall commence on the Commencement Date and shall continue for an initial term of [Insert Contract term] commencing on the Commencement Date (the “Initial Term”).
2.6 For the avoidance of doubt, the supplier shall not commence work until it is in receipt of this Agreement signed by the Customer and a written purchase order, or other written confirmation of services required by the Customer covering the full value of the Services to be provided, in a form acceptable to the Supplier.
3.0 FEES AND PAYMENT
3.1 In consideration of the supply of the Services by the Supplier, the Customer will pay the Fees to the Supplier as indicated in the original estimate.
3.2 The Fees are quoted in pounds sterling exclusive of VAT and any other tax or duty payable by the customer unless otherwise indicated in the cost proposal.
3.3 The Fees are payable within 30 days of receipt of invoice from 10ACT (the “due date”).
3.4 If payment is not received by the due date then all Services may be suspended until payment is received.
3.5 The Supplier has the right to charge the Customer interest, administration and bank charges in respect of late payment, dishonoured cheques, direct debit cancellation and any other non-payment of any part of the Fees due under this Contract at the rate of 4% per cent above the base rate from time to time of Lloyds Bank plc from the due date until payment.
3.5 Should the Customer wish to carry on with the service provided at the end of the Term of the contract without agreeing pricing and providing a purchase order or acceptable equivalent, the supplier will instigate Out of Contract Pricing. All costs will be charged on a month by month basis at a rate of the original contract price + 20% until such time as a new contract is agreed and purchase order or equivalent is received.
4.1 From the Commencement Date, the Supplier shall ensure that the Services are provided to the Customer in accordance with the description of the Services in the Estimate in accordance with these Conditions.
5.0 CUSTOMER OBLIGATIONS
5.1 To enable the Supplier to supply the Services to the Customer, the Customer shall perform the following obligations as set out below, to the extent that such obligations relate to such elements of the Services as selected by the Customer.
5.2 The Customer shall:
Provision of Accurate Details
5.2.1 ensure that all information has been entered onto the System or provided to the Supplier in respect of contact or service details at the Commencement Date;
5.2.2 as soon as possible, where a Customer is aware of a change or alteration to any information supplied, to update such information by entry of such information onto the System or by the supply of such information to the Supplier;
5.2.3 to provide the Supplier with the details of the person who the supplier may communicate with regarding the Services or these Conditions;
5.2.4 to keep confidential all passwords relating to access of the Systems and use reasonable endeavours to ensure that all employees, agents and sub-contractors of the Customer who may have been supplied such passwords are similarly bound by such obligations of confidentiality;
5.2.5to regularly change such passwords or where relevant to instruct 10ACT to change such passwords;
5.2.6 to change such passwords where an employee of the Customer ceases to be employed by the Customer.
5.2.7 to comply with all relevant data security regulations as the “Data Owner” and ensure that the Supplier is made aware of any specific requirements that they may have for the management of their data by the Supplier who in this case can be defined as the “Data Processor”
5.2.8 to comply with all other obligations of the Customer pertaining to the Services as contained in these Conditions.
6.0 WARRANTY AND LIABILITY
6.1 The Supplier warrants that the Systems and Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the User Guide and Estimate.
6.2 Apart from the warranty provided at Condition 6.1, all other warranties whether express or implied are hereby excluded to the fullest extent permitted by law.
Except in respect of death or personal injury caused by the Supplier’s negligence or as expressly provided in these Conditions, the Supplier shall not be liable to the Customer by any reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty of common law, or under the express terms of the Contract, for any loss of profit, or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants, sub-contractors, agents, representatives or otherwise) which arise out of or in connection with the provision of the Systems and Services or their use by the Customer and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Fees paid by a Customer in the three months prior to the event giving arise to a claim.
The Supplier shall not be liable for any breach of warranty or for any loss, damage, expenses or other claims due to:
6.2.1the supply by the Customer of any inaccurate, incomplete, illegible or incorrect information to the Supplier or onto the System; or
6.2.2 the failure to perform any of the Supplier’s obligations in relation to the Systems and Services, if the delay or failure was due to any acts or omissions or the breakdown, interruption or service failure to any telecommunication or other communications system.
6.2.3 The Customer will keep the Supplier fully indemnified against all actions, claims, costs, expenses and damages brought against or suffered by the Supplier as a result of the negligence of the Customer, its employees, sub-contractors, agents or otherwise.
7.1 10ACT and the Customer will jointly agree implementation schedules with deadlines once the project meetings have taken place. Changes to the specification once an implementation schedule has been agreed may result in changes to the delivery date although these will be discussed and agreed with the Customer in advance.
8.0 RISK AND PROPERTY
8.1 Risk of damage to or loss of any documents or other materials supplied by the Supplier shall pass to the Customer on delivery to the Customer’s premises.
8.2 Notwithstanding delivery and passing of any documents or other materials supplied by the Supplier, the property in such documents or materials shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the Fees for the Services.
9.0 INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in any materials or documents supplied pursuant to the Contract will remain the property of the Supplier or its suppliers or sub-contractors.
10 TERM, TERMINATION, AND CANCELLATION
10.1 This Contract shall enter into force on the Commencement Date and subject as provided herein shall continue in force for the Term and shall continue thereafter for successive periods equivalent to the Term.
10.2 This Contract may be terminated:-
10.2.1by the Supplier or the Customer on 90 (ninety) days Written notice;
10.2.2forthwith by the Supplier if the Customer fails to pay any sums payable under the Contract within 30 (thirty) days of the due date;
10.2.3 forthwith by either Party if the other commits any material breach of any term of the Contract other than one falling within Condition 10.2.2 and which (in the case of a breach capable of being remedied) shall not have been remedied within thirty days of a Written request to remedy the same; or
10.2.4 forthwith by either Party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee, receiver or administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other, or a petition is presented or a meeting convened for the purposes of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purposes of an amalgamation or reconstruction).
10.3 Any termination of this Contract shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
10.4 For the avoidance of doubt, if either party terminates this Agreement under this clause then the Customer will receive a pro-rata rebate of the amount of any annual fee’s paid in advance beyond the effective date of termination.
11 CUSTOMER QUERIES
11.1 Any questions or queries which the Customer may have in connection with the performance of the Systems or Services or any matter in connection with this Contract shall be made through the help line telephone number.
12.1 Neither Party shall be liable for any loss or damage caused by the delay in the performance or non-performance of its obligations under these Conditions where the same is occasioned by any cause whatsoever that is beyond the reasonable control of that Party. Should any such event occur, the Party in default shall forthwith give notice to the other detailing the circumstances and, if a default shall continue for more than six weeks, then the other Party shall be entitled to terminate the Contract. Neither Party shall have any liability to the other in respect of the termination of the Contract as a result of such an event.
12.2 Neither the Customer, nor the Supplier shall, without the prior consent of the other party, assign, sub-licence or otherwise transfer the Contract nor any of its rights and obligations under the Contract, which should not be unreasonably withheld.
12.3 Any notice required or permitted to be given by either Party to the other under these Conditions shall be in Writing addressed to that other Party at such address as at the relevant time has been notified to the other Party.
12.4 No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach in the same or any other provisions.
12.5 If any provisions of these Conditions are held by a competent authority to be invalid or irreversible in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.6 The Contract shall be governed by and shall be read and construed in all respects in accordance with English law and each of the Parties hereto submits to the non-exclusive jurisdiction of the English Courts.
12.7 A person or other legal entity who is not a party to these Conditions has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
13 PHONE NUMBERS
13.1 Included in the service supplied by 10ACT, we may make available to you geographic or non geographic telephone numbers. The title of any number provided by 10ACT, whether documented or otherwise does not pass to the customer. You acquire no rights of ownership through this agreement. You have no rights to sell or transfer the numbers provided by 10ACT either during the course of this agreement or upon termination.
13.2 It is the responsibility of the customer to ensure that the use of these numbers is consistent with the rules and regulations in place in the specific market of use. 10ACT accept no liability for the improper use of these numbers.
14.0 TRACKBACK CALL CHARGES
14.1 Calls made through the 10ACT TrackBack system may be subject to charge. All charges will be communicated at the start of the contract.
14.2 Changes to call costs will be communicated to the customer in advance of those changes taking effect.
14.3 Calls made through TrackBack pass through a designated number provided by 10ACT. We recommend that you check with your own telecommunications supplier to ensure that you are aware of your call costs to designated TrackBack telephone numbers. 10ACT are not responsible for your telecommunications call charge structures.
15.0 TRACKBACK CALL RESTRICTIONS
15.1 The TRACKBACK system provided by 10ACT cannot be used to call the following:
15.1.1 Premium rate telephone numbers
15.1.2 08 or 070 designated telephone numbers
15.1.3 International telephone numbers (outside the designated market of operation)
15.2 Any call attempts to these numbers by Dealers through the TrackBack system will automatically blocked.
16.1This is the entire agreement between the parties in relation to its subject matter and it supersedes all previous written or oral negotiations, promises and understandings.
16.2No modification of the recorded terms will be binding unless it is in writing and signed by each party.
16.3 Each party is to pay its own legal costs related to preparing and signing the document.
16.4 Nothing in the document constitutes a partnership among the parties or authorises any party to act as agent or to bind another or contract in another’s name.
16.5 Successors will be bound by the relevant undertakings and obligations, but they’ll also enjoy the same rights.
16.6 Failure to take action does not mean a party has consented to another party’s actions nor does it prevent a party from taking action later.
16.7 Rights will only be waived if that waiver is in writing.