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Telephony Services Terms and Conditions
By registering with Callagenix Limited. the User agrees to the following Terms & Conditions of Service.
Users who have not purchased a service are only bound by the relevant terms and conditions applicable to becoming a Callagenix Ltd. user and testing the services.
ACKNOWLEDGEMENT & ACCEPTANCE OF TERMS OF SERVICE
Callagenix Ltd. Services are owned and operated by Callagenix Ltd, and are provided to business users under the 'Terms & Conditions' herein. Unless otherwise agreed, Callagenix Ltd. may at any time modify the 'Terms & Conditions' without any prior notice. Any such changes will be displayed on the Callagenix Ltd. website at URL www.callagenix.com or any subsequent URL as Callagenix Ltd. may determine. Your continued use of the Service (as defined below) thereafter will constitute acceptance of such changes. The 'Terms & Conditions' and the User's registration information are the complete agreement between the User and Callagenix Ltd. regarding this Service, and supersede any other prior agreements or communications between Callagenix Ltd. and the User.
"Service", shall mean the Services provided by Callagenix Ltd. under this agreement which are more particularly set out under the page headings Callagenix Ltd. Services on the Callagenix Ltd web site and the Testing Service.
'User', shall mean a person who has been through Registration and has been accepted as a User by Callagenix Ltd
'Registration/Register', This means the process ofapplying for A User Account with Callagenix Ltd. and agreeing to these terms and conditions.
'Account Operating Balance', This displays the current status of funds you have in your User Account to purchase the rental of the service, telephone numbers and any call minutes you may use.
'Operating Vouchers', This is the means by which you add funds to your Account Operating Balance by purchasing vouchers with a credit card, bank transfer or direct debit.
'Automatic Operating Voucher', This is an automatic means by which (if selected) additional Operating Vouchers are purchased when your Account Operating Balance falls below a pre-determined level.
'Resellers', shall mean the person, persons or organisations introducing Users to the Service.
'Network Provider', shall mean the company or organisation delivering your existing telephone service, e.g. BT.
'PSA - Phone-paid Services Authority' Previously known as PhonePayPlus, and before that known as the Independent Committee for the Supervision of Standards of Telephone Information Services (ICSTIS) is the Premium Rate Phone Services regulator for the United Kingdom.
'Charges', means the charges in respect of the Services, including telephone numbers
'Rental Period', means the duration for which a service including the telephone number is hired and as indicated by the User when ordering operating vouchers to pay for Services;
'User Account', an account set up by Callagenix Ltd from which User pays for Services.
'Testing Service', means the free trial of Services which the User can undertake prior to purchasing Services and as further detailed below;
All telephone numbers provided by Callagenix Ltd. are rented to the User for their sole dedicated use for their selected Service, for the duration of the Rental Period as selected and paid for by the User, with the exception of: Users who participate in the Testing Service Callagenix Ltd. When there are insufficient funds to cover the service rental charges the service will stop and the Users Telephone number will be suspended for a period of 30 days after which time the numbers will be quarantined for a period of 12 months when they will become available for re-use by another user. Users who wish to reuse suspended or quarantined telephone numbers must contact Callagenix support. A £10 reconnection charge may be applied for each number reconnected.
The network providers reserve the right to change telephone numbers as and when specified by OFCOM.
Users acknowledge and agree that the Services and any necessary software used in connection with the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorised by Callagenix Ltd., Users agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the software, in whole or in part.
NO RESALE OF SERVICE
Users agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services, or any benefits of being a Callagenix Ltd. User.
Users agree not to use the Service to transmit or receive any material which would contravene the laws of the United Kingdom (which, without prejudice to the generality of the foregoing, shall specifically include conduct contrary to the COMPUTER MISUSE ACT 1990 or the TELECOMMUNICATIONS ACT 1984, or the DATA PROTECTION ACT 1998, or the PHONE-PAID SERVICES AUTHORITY code of practice or the lawful requirements of any existing or future regulatory body. ANY BREACH OF THE ABOVE WILL RESULT IN THE TERMINATION OF ALL CALLAGENIX LIMITED SERVICES TOGETHER WITH USER ACCOUNTS AND MAY AS A CONSEQUENCE RESULT IN CRIMINAL PROSECUTION.
LIMITATION OF LIABILITY
USERS EXPRESSLY UNDERSTAND AND AGREE THAT CALLAGENIX LIMITED OR ANY OF ITS SUBSIDIARIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY LOSSES OR DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CALLAGENIX LIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OF OR THE INABILITY TO USE THE SERVICE. (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES (ii)ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE. (iii) UNAUTHORISED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA. (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
All notices to you will be made via email to your email address in your user account or by posting on the User Login screen. Callagenix Ltd. may also provide notices of changes to the Terms & Conditions or other matters by displaying notices or links to notices on the Callagenix Ltd. Web site.
Users agree that they will not use the Service for any illegal purpose, for the transmission of information that is libellous, unlawful, harassing, abusive, threatening, harmful, vulgar, defamatory, obscene, pornographic, or infringes a third party's rights nor will they use the Service in any way that may infringe a third party's rights, the laws governing, but not exhaustively covering, copyright, intellectual property rights, trademarks, pornography, or any other material that is slanderous, defamatory or might cause offence in any way. Nor will the User use the Services in any which may breach the PHONE-PAID SERVICES AUTHORITY or OFCOM rules and regulations.
Users agree that they will not use the Service in such a manner that is inconsistent with these Terms & Conditions or engage in any action that might be considered System abuse in the opinion of Callagenix Ltd.; these include but are not limited to:
1. Attempting to take unfair advantage in terms of the Services offered by redirecting calls to unapproved destinations, unauthorised access attempts or artificial inflation of call traffic.
2. Attempting to circumvent Codes, User authentication or security of any host, network, or User Account on Callagenix Ltd. or its authorised partners systems.
3. Attempting, in any way, to interfere with, cancel or deny Service to any other Callagenix Ltd. Users or resellers.
The User accepts responsibility for the following;
- To obtain all necessary permissions to use and pay for the Services selected, to receive, download, upload, display, distribute or execute other programs or perform other works. This Service is provided to individuals who work for or represent Users BY COMPLETING THE REGISTRATION PROCESS, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE.
USER REGISTRATION AND USER ACCOUNTS
Users agree to provide true, accurate, correct and complete information, which Users are required to provide when Registering as a User and to amend such User details immediately that there are any changes to such information. Users agree not to impersonate any other person or entity or to use a false name or a name that the User is not authorised to use. If the User is accepted, they will be forwarded a user name and password to the email address specified in the Registration process. The User is allowed to select a user name of their choice, although Callagenix Ltd. reserves the right to modify such or provide the User with a user name of Callagenix Ltd. choice if, in its sole opinion, such user name infringes or violates the rights of any person or third party or is defamatory, offensive or is in any other way improper or inappropriate. Callagenix Ltd. reserves the right to terminate the Services and the User's Account if any information provided by the User in the Registration process is untrue, inaccurate or out-of-date. When using the Service Users have sole responsibility for maintaining the security and confidentiality of all passwords, User names, PIN numbers or security access codes ("the Codes").Users accept total responsibility for these Codes and for any consequence of these Codes being divulged. Users are also obliged to pay the applicable charges for calls to help line and any charges for changing the Codes. Failure to do so will be considered a breach of these Terms & Conditions.
Callagenix Ltd. reserves the right to decline application to Register as a User of the Service, in its sole discretion.
Callagenix Ltd. does not claim ownership of the content placed on any of its Services created by a User. By submitting content to Callagenix Ltd. for inclusion in its Services, the User grants Callagenix Ltd. the world-wide, royalty-free, and non-exclusive licence to reproduce, modify, adapt and publish the content solely for the purpose of running and promoting the User's Service.
Users acknowledge that Callagenix Ltd. does not pre-screen content, but that Callagenix Ltd. and its operators shall have the right (but not the obligation) at their sole discretion to refuse to accept or remove any content that is available via the Service. Without limiting the foregoing, Callagenix Ltd. and its operators shall have the right to remove any content that violates the Terms & Conditions, or is otherwise objectionable to Callagenix Ltd.
TERMINATION OF USER ACCOUNT BY THE USER
For most services and numbers, Account Holders may terminate their User Account with Callagenix Ltd. at any time following an acknowledgement by Callagenix of a written notice by the Account Holder to cancel any Services and Numbers giving at least 30 days notice. However, in some cases (for example certain International and Premium Rate numbers) the Account Holder may be required to pay a cancellation fee of up to 12 months service and number rental depending upon the applicable service or number. If the Account Holder is required to pay such a cancellation fee then this will be detailed in the acknowledgement sent to the Account Holder in response to the cancellation request.
TERMINATION OF USER ACCOUNT BY CALLAGENIX LIMITED
Callagenix Ltd may immediately terminate User Accounts and Services at any time in the event that a User breaches any of these Terms & Conditions. In the event that a User Account is terminated for breaching these Terms & Conditions; Callagenix Ltd. will give no refund of Charges or call revenue accrued in the operating balance. Callagenix Ltd. may also, at its sole discretion, and, at any time, discontinue the provision of any of its Services or any part thereof, with or without notice. Callagenix Ltd. reserves the right to terminate a User Account or Services without notice in the event of a failed, returned or rejected payment by the user or if a User's card issuer seeks return of payments previously made to Callagenix Ltd. or any of its agents, affiliates or resellers, when Callagenix Ltd. in good faith believes Users are liable for the Charges. Such rights are in addition to and not in lieu of any other legal rights or remedies available to Callagenix Ltd. All Charges due to Callagenix Ltd. must be paid in full by your card issuer immediately on presentation by Callagenix Ltd.
RE-INSTATEMENT OF USER
If a User's User Account is terminated for any reason, Users can only be reRegistered at the sole discretion of Callagenix Ltd. To be reRegistered, you must complete the full Registration process and agree to abide by the applicable Terms & Conditions, including full payment of any Charges.
In order for Users to gain access to, select, modify, test, and activate any of the Services the User must first Register with Callagenix Ltd. and become a User. CALLAGENIX LIMITED DOES NOT CHARGE USERS FOR THE TESTINGSERVICES. USERS ARE ONLY CHARGED FOR TELEPHONE NUMBERS AND SERVICES THEY HAVE COMMITTED TO PURCHASE.
Callagenix Ltd. provides Users with the facility to 'test' their selected Service prior to committing and paying for their own dedicated Service. Users can perform as many tests as they wish providing they comply with these Terms & Conditions and it will only cost them the price of a national rate telephone call (at whatever rate per minute you pay to your network provider) if calling within the UK, or at whatever rates they pay if calling internationally. The Testing Service is provided for TEST purposes only and must not be used for or assumed for a User's dedicated or commercial use. ANY USER FOUND IN THE OPINION OF CALLAGENIX LIMITED OR ITS AUTHORISED RESELLERS ABUSING THE TESTING SERVICE WILL HAVE THEIR USER ACCOUNT TERMINATED IMMEDIATELY.
CALLAGENIX LIMITED SERVICES
Callagenix shall provide the Service and Callagenix web site to the Customer subject to availability and shall exercise all due care in the provision and maintenance of the Service to provide high quality and reliability
CALLAGENIX BASIC SERVICE
Numbers operating on Callagenix Basic Services constitute straight route options only. This means that there is a single translation of a telephone number being forwarded directly to a target number .The service will not provide any Intelligent Routing Services such as voicemail, messaging, call queuing etc. but will act exactly as though the caller has dialled the target number directly. Basic Service Numbers incurring a charge and operating on a Callagenix User account are charged in advance to the User at a fixed charge for a set number of minutes (as described in the Callagenix price list).Minutes used over the allocated amount will be charged at an 'over bundle' rate (as described in the Callagenix price list).The allocated number of minutes must be utilised within the timeframe defined within the Callagenix Price List. Users operating a Callagenix Standard Routing Service number must setup and retain a continuous billing authority with Callagenix (either Direct Debit or Credit/Debit Card authorisation) and agree to Callagenix automatically claiming the relevant payment(s) for the Callagenix Standard Routing Services via the defined billing authority. Failure to maintain a continuous billing authority may result in suspension of or termination of the service but will not release the User from their obligations under the minimum contract period. Should the User wish to reconnect their Standard Routing Service number following suspension or cancellation then a reconnection fee of £25 plus VAT will become payable.
CALLAGENIX ADVANCED SERVICES
Callagenix Advanced Services comprise all services that are not Basic Services and which are funded directly from the User Account Operating Balance. Depending on the type of number being used with these services, funds may be accrued into or debited from the Operating Balance. It is the responsibility of the User to ensure that the Operating Balance is maintained at a suitable level to support the services operating on the account. Should the Operating Balance fall below this level then numbers will be suspended automatically by the system.
Funds can be added to the Operating Balance by purchasing Operating Balance vouchers. The amounts and costs of the vouchers are described within the Callagenix price list. Where applicable, VAT will be added to the cost of the voucher. The Operating Balance figure is always shown exclusive of VAT.
CALLAGENIX ADVANCED INCLUSIVE PACKAGES
Users operating Callagenix advanced inclusive packages pay a monthly fee in advance for the collection of services, equipment , numbers and calls relevant to the package they choose. The monthly fee covers all charges except the additional cost of calls greater than 30 minutes and calls to numbers beginning 09, 084, 087, 070 and any international destinations where the call cost is shown in the Callagenix price list as greater than 8p per minute. Calls to these destinations will be allowed (unless otherwise directed) but will be charged additionally at the rates described in the Callagenix price list.
Users operating a Callagenix advanced inclusive package must setup and retain a continuous billing authority with Callagenix (either Direct Debit or Credit/Debit Card authorisation) and agree to Callagenix automatically claiming the relevant payment(s) for the package via the defined billing authority. Failure to maintain a continuous billing authority may result in suspension of or termination of the package but will not release the User from their obligations under the minimum contract period. Should the User wish to reconnect their advanced inclusive package following suspension or cancellation then a reconnection fee of £25 plus VAT will become payable.
All equipment and telephone lines supplied to Users as part of a Callagenix Advanced Inclusive Service remains the property of Callagenix Ltd and the user accepts their obligation to return to Callagenix Ltd such equipment in good working order immediately following the termination of the Advanced inclusive Package.
The Advanced Inclusive Packages are intended and priced for general business users and are not designed for call centres. Should Callagenix become aware that a User operating an Advanced Inclusive Package is a call centre then Callagenix reserve the right immediately and without notice to increase the cost of the monthly charge to the User, limit the number of calls and call time allowed or terminate the package at Callagenix Ltd’s sole discretion. A User will be defined as a call centre user if they average more than 50 calls per working day per user.
SERVICES ACTIVATION & TOP UP
Users Services will only be activated once a User has confirmed acceptance of the Service, all Charges have been paid in full, and these Terms and Conditions have been agreed to. Callagenix Ltd. will notify Users, by email, to the address given on Registration when a User's Account Operating Balance has reached a level which is approximately equivalent to 20% of the value of the last Operating Voucher purchased by the User. The User should top up their account Operating Balance by purchasing an Operating Balance Voucher before the Account runs out of funds. If the User's account has an insufficient Account Operating Balance to complete a call, the Services will be suspended until the Account Operating Balance is back to a sufficient level.
MINIMUM CONTRACT PERIOD
CALLAGENIX BASIC SERVICE NUMBERS
When setting up a Callagenix Standard Routing Service number, the User agrees to pay for the number for a minimum term of 12 months following the provision of the number. Following the initial 12 month period Users may terminate their number providing not less than 1 months notice via email to Callagenix (sent from the Users registered email address). If a User cancels their account or number after 30 days but within the initial 12 month period then they will remain liable for and agree to pay for the remainder of the initial 12 month period as if they had not cancelled their account or number.
CALLAGENIX ADVANCED SERVICES
There is no minimum term for running Callagenix Intelligent Routing Services except for services utilising International Regional, International Freephone, Universal International Freephone or Premium Rate (09x) numbers. In each case the minimum contract period is 12 months beginning from when the Service or Number is allocated to the User Account. Following the initial 12 month period Users may terminate their Intelligent Routing Service providing not less than 30 days notice via email to Callagenix (sent from the Users registered email address). Please also refer to the clause 'Termination of User Account by the User' for further information regarding notice periods and cancellation fees.
CALLAGENIX ADVANCED INCLUSIVE PACKAGES
When setting up a Callagenix Advanced Inclusive Package, the Users agrees to pay for the package for a minimum term of 24 months following the provision of the package. Following the initial 24 month period Users may terminate their package providing not less than 1 months notice via email to Callagenix (sent from the Users registered email address).If a User cancels their account or package after 30 days but within the initial 24 month period then they will remain liable for and agree to pay for the remainder of the initial 24 month period as if they had not cancelled their account or package.
GOLD, SILVER AND BRONZE NUMBERS
Should the User purchase a Gold, Silver or Bronze number from Callagenix then the User accepts that these numbers have been provided to the User on a discounted basis on the proviso that the User retains a service from Callagenix on any such number for a minimum period of two years. Should the User wish to port that number to an alternative provider within the two year period then the user agrees to pay a fee to Callagenix equal to three times the initial fee for the number if the number is ported within 1 year of the initial purchase or twice the initial fee if the number is requested to be ported between 12 months and 24 months of the initial purchase.
MODIFICATIONS TO SERVICE AND MAINTENANCE
Callagenix Ltd. reserves the right at any time to suspend, modify or discontinue the Services (or any part thereof) including, without limitation, for maintenance or regulatory purposes or any other purpose without incurring any liability or obligation to you or to any third party. All reasonable efforts will be made to minimise stoppages or suspensions.
REFUSAL OR WITHDRAWAL OR SUSPENSION OF PREMIUM RATE SERVICE
Where in the first two full calendar months of use, or any subsequent two full calendar months, the User has not received at least one call on their premium rate number ("Minimum Use") Callagenix Ltd. may 10 days after the end of the two months in which the Minimum Use was not achieved, take back the allocated number, at which point the User's entitlement to use the Service shall immediately cease. Any number(s) taken back under this clause may be made available for other Users after a further 1-month period. Users agree to abide in full with all conditions as set out in the PHONE-PAID SERVICES AUTHORITY code of practice concerning premium rate services. Callagenix Ltd. and its authorised resellers reserve the right to cancel, suspend, withhold revenues, modify or refuse Users Services in part or whole and without any refunds of Charges from their User Account with Callagenix Ltd. if they violate the PHONE-PAID SERVICES AUTHORITY code of practice and or Callagenix Ltd. Terms and Conditions.
PAYMENTS CHARGES AND TARIFFS
The User must ensure that the Operating Balance of their account remains in credit as all services are funded from this balance. Should the Operating Balance fall below the level necessary to pay for services or numbers then the respective services or numbers will automatically be suspended until further funds are added to the Operating Balance. Callagenix will send out warning emails requesting payment when the Operating balance falls below a preset level. This level can be set to a customer defined level. Callagenix suggest a figure that would equate to 1-2 weeks of usage to ensure sufficient funds to continue the services. Should numbers be suspended from a User account then the User must request reactivation of those numbers by contacting Callagenix Support. A number reconnection fee is payable in this instance of £10 per number (exclusive of VAT).
Payment for Callagenix Ltd. Services must be made using either bank transfer, direct debit or the User's own credit or debit card, details of which must be submitted in the payment section of the web site when completing your Services set-up. No Services will become active until payment authorisation in full has been completed.
Callagenix operate a minimum payment policy on their Advanced Services of £25 for credit/debit card and direct debit payments, £100 on bank transfer and £500 on moneygram payments (all amounts detailed exclusive of VAT) .Payments made under this amount will incur a payment processing charge of £5 plus VAT. These charges do not apply to Standard routing numbers as these will always be collected on direct debit or credit card and may be less than the minimums described herein.
Callagenix Ltd will make the following charges in the event of failed payments:
Direct Debit – If the direct debit mandate is cancelled or if collection fails for reason of insufficient funds then a fee of £25 per failed collection attempt will be applied to the Users account and will be deducted from the Operating balance if sufficient funds are available. If the Direct debit was for the purchase of an operating voucher then the amount of the Operating Voucher will be removed from the Account Operating Balance.
Debit/Credit Card – No charge will be levied against the Users account for the failure of a credit or debit card payment but should the account run out of funds then reconnection fees of £10 per number will apply. In the event that a chargeback is received against a card transaction on a user account then Callagenix will apply a fee of £25 plus VAT for each chargeback received to the account and remove the funds of the affected transactions from the account operating balance. Callagenix will also immediately suspend all numbers and services on the account. For the avoidance of doubt, this action will not relieve the User from its obligations under these terms and conditions.
TYPES OF CREDIT CARDS
Callagenix Ltd accepts VISA and MASTERCARD credit cards and Switch and JCB debit cards and will appear on a statement as 'CALLAGENIX LIMITED'.
Callagenix Ltd do not store credit card details nor do we share customer details with any 3rd parties, other than required by regulatory bodies or required explicity for the provsion of the User services.
1. Payments for services that are unused and cancelled within 30 days are entitled to a full refund. An account that has either used services that are subsequently cancelled or requests a refund outside of the first 30 days may be provided with a partial refund at the sole discretion of Callagenix Ltd after taking into account any cancellation or other relevant charges. It should be noted however that there is no obligation on Callagenix Ltd to provide any form of refund outside of those for accounts and services that are unused and cancelled within 30 days of payment being credited to the account.
2. Requests for refunds should be sent as an email to the Support Team firstname.lastname@example.org where they should be responded to with within10 working days. All requests for a refund will be considered on their merits, so please ensure you submit all relevant information and copies of correspondence and other documents when making your request.
3. Where the User has terminated the agreement with us, then the particular provisions relating to the User’s liability on termination will apply.
Once a User's Service has been successfully connected to the Users telephone number, all Charges applied are non-refundable. Any Operating vouchers purchased either by the User directly or via an auto-voucher are non-refundable unless covered by Point 1 of this refund policy. Operating Balances remaining once Services and charges have ceased will remain on the Users account for re-use at any time within the following 12 months after which time the Operating Balance will be reset to zero. Callagenix does not specifically hold the operating balances in a separated bank account, but any monies held are accounted for individually against each operating balance for the sole purpose of provision of the Services by Callagenix or its successors.
The full list of Tariffs and Charges are available via the Pricing page at:
PREMIUM RATE 084x 087x, 0871 PAYMENTS (Revenue Payments)
Users operating Callagenix Ltd. Premium Rate Services or 084x and 087x numbers that qualify for revenue outpayments will receive a percentage or an amount as specified of total revenues for their Premium Rate Services and 0870 and 0871 paid to Callagenix Ltd. by the network provider. All revenues accrued and awaiting payment from the network provider are added into the Operating Balance of Users accounts. When Callagenix have received payments from the network provider they will be automatically paid to the Users nominated bank account (less any charges) within 30 days from Callagenix Ltd receiving the revenues. VAT will be added to any payments if the User is VAT registered and has agreed to VAT Self Billing.
Callagenix Ltd shall not be liable in any way for loss, damage or delay consequent upon any circumstances beyond its reasonable control. This Agreement together with any documents referred to in this Agreement sets out the entire agreement and understanding between the parties and supersedes all prior agreements, understandings or arrangements (oral or written) in respect of the subject matter of this Agreement.
User acknowledges that it has entered into this Agreement in reliance only on the representations, warranties promises and terms contained in this Agreement and, save as expressly set out in this Agreement, Callagenix Ltd shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, it shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
ASSIGNMENT RIGHTS AND JURISDICTION
Callagenix may assign any or all of its rights and obligations under this agreement at any time to any person or party without notice to or agreement from the account holder or User. The User may assign any or all of its rights and obligations under this agreement at any time to any person or party who is also a registered User of the Callagenix services. In order to effect such a transfer, the User should notify Callagenix of such an intended transfer by providing no less than 10 working days notice.
This Agreement shall be governed by and construed in accordance with English law.
Each of the parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the courts of England.
Dark Web Monitor Service Terms and Conditions
1 DEFINITIONS AND INTERPRETATION
1.1 Words and phrases with capital letters used in this Agreement and not otherwise defined shall have the meanings set out in Schedule 1 (Definitions) unless the context requires otherwise.
1.2 In this Agreement, headings and bold type are for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement, unless the context otherwise requires.
1.3 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders, and the term ‘include(s)’, ‘including’ or ‘in particular’ are deemed to have the words ‘without limitation’ following them.
1.4 In the case of conflict or ambiguity, the order of precedence for this Agreement and any documents attached to or referred to in it will be as follows, in descending order of importance:
1.4.1 the Order or Voice Recording (as applicable);
1.4.2 any Service specific terms and conditions contained in the Schedules and Appendices;
1.4.3 the Supplier’s Policies;
1.4.4 these General Conditions;
1.4.5 the relevant Tariffs for the Service (where applicable); and
1.4.6 any further conditions relating to specific services (where referenced in the applicable Schedule)
together, these documents set forth the agreement between the Customer and the Supplier. All terms and conditions are available at Terms and Conditions | Callagenix.
1.5 The Supplier agrees to fulfil the Order in accordance with its terms and conditions referred to above to the exclusion of all other terms and conditions, including any terms communicated to the Supplier at any time prior to, with or after acceptance of the Order. Where the Customer provides the Supplier with a Purchase Order in respect of the Services stated on the Order, the Customer will be deemed to have accepted the Order and the applicable terms and conditions of the Supplier to the exclusion of all others in the same way it would had the Customer signed the Order.
2 COMMENCEMENT AND DURATION
2.1 This Agreement shall commence on the date of this Agreement and shall continue in force for a minimum period of two (2) years from the Commencement Date or as otherwise specified in the applicable Order or Schedule (“Minimum Term”) and thereafter shall be renewed automatically for successive periods of twelve (12) months (each a “Successive Term”) unless terminated:
2.1.1 by the Customer giving the Supplier not more than ninety (90) days and no less than thirty (30) days written notice, before the end of the Minimum Term or Successive Term; or
2.1.2 in accordance with clause 8.
2.2 Certain Services are subject to longer notice periods for termination which are imposed by the Third-Party Supplier. Termination notice provisions for such Services will be as set out in the Order, the relevant Schedule 3 (Services) and/or Schedule 4 (Support Service), and in respect of such Services clause 2.1 will be deemed to be amended accordingly.
2.3 Any Services used by the Customer during any notice period in accordance with clause 2.1 and clause 2.2 above will be chargeable, and any Third-Party Supplier costs (including termination fees) incurred by the Supplier within this notice period in accordance with clause 8.7. Termination Charges may apply if the Service is terminated outside of the prescribed timescales set forth in clause 2.1 or clause 2.2 above.
2.4 Where certain Services are subject to Industry Regulations, Microenterprise or Small Enterprise Customers and/or Non- for-Profit Customers may have additional rights in respect of contract terms such as renewal periods, contract variations, termination and dispute resolution. These rights will be included within the terms of the relevant Schedule 3 (Services), however further information on such rights can also be found at www.ofcom.org.uk.
2.5 Where the Customer has provided notice to terminate for convenience under clause 2.1.1 (or as otherwise expressly provided for in the Agreement), but fails to transfer the services away from the Supplier within 30 days from expiry of the Minimum Term or Successive Term, or provide written confirmation that services are to be ceased upon expiry of such notice, the Customer’s conduct shall be deemed acceptance by the Customer of a continuing agreement with the Supplier for a Successive Term or subsequent Successive Term and constitute withdrawal of the notice of termination.
3.1 The Supplier shall with effect from the Commencement Date provide to the Customer the Services set out in the Order as further detailed in Schedule 3 (Services) and Schedule 4 (Support Services) for the duration of the Minimum Term and any Successive Term. For the avoidance of doubt, the use of the Services or payment of the Services is deemed as acceptance of this Agreement and the terms and conditions contained herein.
3.2 If any element of the Services is provided over the Customer Portal or any Third-Party Supplier portal or contact platform the following terms shall apply:
3.2.1 the Customer acknowledges that neither the internet nor the server through which the Supplier and/or Third-Party Suppliers provide the internet enables elements of the Services are secure;
3.2.2 the Supplier shall use reasonable endeavours to keep the internet enabled elements of the Services secure, however the Supplier cannot guarantee the security or privacy of the information available through such elements;
3.2.3 any Software or Documentation provided by the Supplier in connection with the provision of the Services shall be subject to the provisions under clauses 3.12 to 3.15 and clause 11;
3.2.4 the Supplier and/or a Third-Party Supplier shall be entitled to modify the Customer Portal or any other portal or contact platform element of the Services from time to time if the Supplier considers such modification and/or replacement is reasonably necessary for the continued provision of the Services.
3.3 Where applicable, the Supplier shall provide to the Customer the Support Services as set out in the Order and further detailed in Schedule 4 (Support Services).
3.4 Where the Customer cancels part only of a Service, the Supplier reserves the right to charge the Customer for the Services so cancelled in accordance with clause 8.6 and to amend the Charges to the Customer for the remaining Services to the Supplier’s standard published Tariffs.
3.5 The Supplier shall provide the Services in accordance with the terms of this Agreement and the Services will be performed:
3.5.1 with all due skill, care and diligence;
3.5.2 in compliance with the Service Levels and Good Industry Practice; and
3.5.3 so as to conform with all Applicable Law relating to the provision of the Services.
3.6 The Supplier will not be liable under this clause 3 or be required to remedy any problem arising from or caused by the Customer’s use of the Services in a manner other than in accordance with this Agreement or as directed by the Supplier.
3.7 The Supplier does not warrant, guarantee or represent that the Services will be continuously available or free from errors and interruptions and the Supplier may be dependent upon Third-Party Suppliers when providing the Services.
3.8 The Supplier shall be entitled to restrict access to Services, if required, at the sole discretion and opinion of the Supplier, for the safety of the Customer Network, to maintain integrity of the Service, in particular to prevent serious malfunction of the Services, Equipment, Software and any stored information or data. Any restrictions shall be kept to a minimum and the Supplier shall use commercially reasonable endeavours to notify the Customer in advance of such restrictions.
3.9 Notwithstanding any other provisions of this Agreement but subject to clause 9.2, the Supplier shall not be liable to the Customer in contract, tort (including negligence) or otherwise for the actions of any Third-Party Supplier that affect or otherwise impact upon the provision of the Services.
3.10 The Customer shall be responsible for the safe keeping and proper use of the Services and Equipment and the Customer undertakes in particular:
3.10.1 to use the Services in accordance with the terms of this Agreement, manufacturers recommendations and any reasonable operating instructions as may be notified to the Customer by the Supplier from time to time;
3.10.2 to use the Services in accordance with the Supplier’s
Acceptable Use Policy;
3.10.3 to comply with Applicable Law and Good Industry Practice;
3.10.4 not to allow any unauthorised connection, gateway or access to the Services and/or Equipment for any purpose other than that for which the Services and/or Equipment is provided;
3.10.5 not to use the Services and to procure that none of its employees use the Services to transmit or receive any material which is defamatory, offensive or of an abusive or menacing character or otherwise is in breach of this Agreement;
3.10.6 not to use the Services fraudulently or in connection with a criminal offence or in any way that is unlawful;
3.10.7 provide such reasonable assistance to and not to impede the Supplier in the performance of its obligations under this Agreement; and
3.10.8 at its own expense, obtain all relevant licences, permissions, authorisations, registrations and approvals required in connection with or necessary for the use of the Services from the appropriate legislative, regulatory or advisory body and shall provide copies of the same upon reasonable request.
SITE ACCESS, PREPARATION AND INSTALLATION
3.11 To enable the Supplier to comply with its obligations under this Agreement the Customer shall:
3.11.1 allow or procure permission for the Supplier during Normal Working Hours to have reasonable access to the Site and the connection points or, where network connection services form part of the Services, such location on the Site and/or any neighbouring property as the Supplier reasonably requires and the Customer shall at all times provide such reasonable assistance as the Supplier requests;
3.11.2 prepare the Customer Network for installation of the Services, unless otherwise specified in the Order, by ensuring that it is fully configured in accordance with the Supplier’s technical specifications;
3.11.3 where required, provide a continuous mains electricity supply and connecting points;
3.11.4 where at the request of the Customer, the Supplier carries out work outside of Normal Working Hours, the Customer shall be responsible for the Supplier’s reasonable additional charges;
3.11.5 at its own expense, obtain all permissions, licences, waivers, consents, registrations and approvals reasonably required and comply with all Applicable Law necessary for the provision of the Services and installation of the Equipment;
3.11.6 take all reasonable steps to provide a suitable and safe working environment on the Site and notify the Supplier in writing of any health and safety rules and regulations and security requirements that apply to the Site;
3.11.7 shall not knowingly or recklessly transmit any material which contains software viruses, or any computer codes, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware; and
3.11.8 at its own expense, prepare and maintain during the term of this Agreement the Site, the Equipment, the environmental conditions of the Site and Equipment and as otherwise the Supplier may reasonably require.
3.12 Where the Supplier makes available Third-Party Software for the Customer to use with the Services, the Customer shall be required to enter into an End User licence agreement in the form set out at any web-link or other location that the Supplier or the supplier of the Third-Party Software may notify the Customer, as amended or supplemented from time to time (“EULA”).
3.13 By accepting the terms of the EULA, the Customer agrees to observe and comply with it for any and all use of the Services. If the Customer does not comply with the EULA, the Supplier and/or the supplier of the Third-Party Software may restrict or suspend the Services upon reasonable notice.
3.14 Where a EULA has not, for any reason, been entered into for any Third-Party Software made available to the Customer by the Supplier, the Customer acknowledges and agrees that they shall comply with the obligations set out in clause 11.6 to 11.9 inclusive in respect of any Third-Party Software.
3.15 All EULA and rights to use the Third-Party Software shall automatically terminate on termination of this Agreement in accordance with clause 11.6.2.
3.16 If the Supplier is unable to configure the Services due to the Customer Network not being ready to connect to the Services or the Supplier discovers that the pre-defined infrastructure and/or configuration agreed with the Customer is not accurate or is incorrect and additional works are required, then the Customer shall be liable to the Supplier for any and all costs and expenses (including Third-Party Supplier costs and expenses) incurred by the Supplier as a result of any Professional Services undertaken to reconfigure the Customer Network and/or any cancelled or rescheduled engineer visit.
3.17 Where applicable, or as specified in the Order, the provision of Services may be subject to a survey of the Site and/or engineering visit by the Supplier to ensure that the Site and/or the Customer Network is in accordance with the Supplier’s technical specifications, the Customer shall:
3.17.1 allow the Supplier, its subcontractors and/or Third- Party Supplier to carry out a survey of the Site to assess suitability of the Customer Network for the provision of Services in accordance with Schedule 3 (Services);
3.17.2 be responsible for the Supplier’s reasonable additional charges where a survey of the Site is carried out, including the costs of the survey, provisioning, engineering and all other costs and expenses associated with any Professional Services, including but not limited to Third-Party Supplier costs and expenses associated with ensuring that the Site is suitable for the provision of the Services; and
3.17.3 at its own discretion, request the Supplier, its subcontractors and/or Third-Party Supplier to submit a proposal to reprogram and/or remove existing Customer Equipment, upgrade or reconfigure the Customer Network to ensure technical compatibility which is necessary for the provision of the Services.
For the avoidance of doubt, any additional works agreed between the Parties under this clause 3.17 shall be subject to a further charge.
3.18 The Customer acknowledges and agrees that there may be technical or geographical limitations which restrict or prevent installation and/or provision of the Services, some of which may not be identified until the Services have been installed, and the Supplier shall notify the Customer as soon as reasonably practicable of any limitations affecting the provision of the Services or inability to provide the Service, the performance of the Services and its effect on other services or Equipment.
3.19 The Customer acknowledges and accepts that:
3.19.1 the Supplier cannot guarantee and does not warrant that the Services will be free from interruptions or will be free from service faults;
3.19.2 there may be degradations of the quality of the Service due to matters beyond the reasonable control of the Supplier; and
3.19.3 the Supplier may change the technical specification of the Services or interrupt the Services to maintain the quality of the Services, for operational or health and safety reasons, or where there is an emergency.
3.20 The Supplier shall use reasonable endeavours to keep such restrictions and/or limitations to a minimum and shall use commercially reasonable endeavours to notify the Customer in advance of such restrictions and/or limitations, however the Supplier shall not be liable for any loss or damage incurred by the Customer should the Services be interrupted or restricted from time to time.
3.21 Throughout the Term of the Agreement the Customer may, subject to notifying the Supplier as soon as reasonably practicable, request;
3.21.1 to move or transfer Services and/or Equipment to a new Site;
3.21.2 configuration changes; or
3.21.3 material change to the Service, including but not limited to the addition, upgrade and/or removal of a Service.
3.22 If a new installation, configuration changes or moving Site involves the visit of an engineer to facilitate it, the Customer shall be responsible for the costs incurred by the Supplier for the appointment of the engineer together with an administration fee in respect of additional works required to be undertaken by the Supplier to complete the necessary works. Such activity shall be chargeable as a MACD Service.
3.23 Where the Customer requests to transfer or move Services and/or Equipment to a new Site or a material change to the Services during the Minimum Term, the Customer and the Supplier will agree an additional Order, which will include a new Minimum Term and the Supplier may at its sole discretion apply early Termination Charges to the existing Services.
4 EQUIPMENT CUSTOMER EQUIPMENT
4.1 The Customer shall be responsible for the provision,
installation, configuration, monitoring, support and management of any Customer Equipment connected to or used in the provision of Services and the Customer hereby agrees that:
4.1.1 all Customer Equipment shall be connected at the applicable points and adequately protected against viruses and other breaches of security;
4.1.2 any Customer Equipment connected to or used for the Services shall at all times be connected and shall be technically compatible with the Service, and shall conform to Quality Standards and/or Applicable Law;
4.1.3 it shall maintain the Customer Equipment in good operating condition, subject to normal wear and tear and shall undertake repairs and preventative maintenance on the Customer Equipment in accordance with the manufacturer’s instructions, including warranty terms and conditions, to maintain the Customer Equipment to its published specifications, unless otherwise included in Schedule 4 (Support Services) which are being provided by the Supplier; and
4.1.4 the Supplier shall not be under any obligation to connect or keep connected the Customer Equipment if it does not comply with clause 4.1.1 or if in the reasonable opinion of the Supplier such connection is likely to cause death, personal injury, damage or to impair the quality of the Services.
4.2 Clause 4.1 shall not apply where the Supplier provides Support Services but only to the extent that the obligations stated in clause 4.1 is within the scope of the Supplier’s obligations as detailed in Schedule 4 (Support Services).
4.3 The quantity, quality and description of and any specification for the Hardware shall be those as further described in the Order or Third-Party Suppliers and/or manufacturers technical and operational instructions as may be amended from time to time.
4.4 The Supplier shall use commercially reasonable endeavours to deliver the Hardware to the Customer on the date and to the address specified in the Order, if no date is specified, within a reasonable period from the date of this Agreement. However, time shall not be of essence in respect of any delivery of Hardware.
4.5 Risk in and liability for the Hardware shall pass to the Customer on delivery of each item thereof, however title to the Hardware shall not pass to the Customer until the Customer has paid the Supplier in full for the Hardware.
4.6 The Supplier shall warrant that upon delivery and for a period of twelve (12) months from the date of delivery “Warranty Period” the Hardware shall:
4.6.1 conform in all material respects with the description
4.6.2 be free from material defects in design, material and workmanship; and
4.6.3 be of satisfactory quality
where additional warranties are provided by Third-Party Suppliers and/or manufacturers of the Hardware, the Supplier shall use reasonable endeavours to notify the Customer as soon as reasonably practicable.
4.7 The Customer shall be responsible for installing and supporting the Hardware, unless otherwise specified in the Order or where installation and support is provided by way of Professional Services or Support Services being provided by the Supplier and the Supplier shall not be liable for any loss or damage caused by or repairs required as a result of, installation or misuse of, or damage to any Hardware.
4.8 The Customer hereby agrees that it shall maintain the Hardware in good operating condition, subject to normal wear and tear and shall undertake repairs and preventative maintenance on the Hardware in accordance with the manufacturer’s instructions, including warranty terms and conditions, to maintain the Hardware to its published specifications, unless otherwise included in Schedule 4 (Support Services) which are being provided by the Supplier.
4.9 The Customer hereby agrees:
4.9.1 the Rental Equipment shall at all times remain the property of the Supplier, its subcontractors and/or Third-Party Supplier and the Customer shall (if applicable) enter into a separate lease agreement with the Supplier or a Third-Party Supplier for the provision of Rental Equipment;
4.9.2 only to use the Rental Equipment for the provision of the Services and at all times comply with the terms and conditions of the applicable rental agreement, together with the manufacturer’s recommendations and all reasonable instructions from the Supplier in relation to its connection, use, monitoring and support;
4.9.3 it shall maintain the Rental Equipment in good operating condition, subject to normal wear and tear and shall undertake repairs and preventative maintenance on the Rental Equipment in accordance with the manufacturer’s instructions, including warranty terms and conditions, to maintain the Rental Equipment to its published specifications, unless otherwise included in Schedule 4 (Support Services) which are being provided by the Supplier; and
4.9.4 on expiry or termination of this Agreement, the Customer, where expressly stated within the separate lease agreement, shall return at its own cost, all Rental Equipment, in accordance with the terms and conditions of the separate lease agreement and in good operating condition, subject to reasonable wear and tear to the Supplier, its subcontractors and/or Third-Party Supplier.
4.10 Where the Supplier has provided the Customer with the Ancillary Equipment necessary for the provision of the Service without charge, the Customer hereby agrees that:
4.10.1 the property in and ownership of Ancillary Equipment at all times remain the property of the Supplier, its subcontractors and/or Third-Party Supplier;
4.10.2 risk in and liability of Ancillary Equipment passes to the Customer on delivery and during the Minimum Term and any Successive Term and the Customer must insure Ancillary Equipment in respect of all relevant risks from delivery;
4.10.3 it shall maintain the Ancillary Equipment in good operating condition, subject to normal wear and tear and shall undertake repairs and preventative maintenance on the Ancillary Equipment in accordance with the manufacturer’s instructions, including warranty terms and conditions, to maintain the Ancillary Equipment to its published specifications, unless otherwise included in Schedule 4 (Support Services) which are being provided by the Supplier;
4.10.4 the Supplier has the right to assign or transfer any rights (including but not limited to security interest and/or encumbrance) to Ancillary Equipment without the Customer’s consent;
4.10.5 the Supplier reserves the right to modify, upgrade, replace or introduce new technologies and/or Ancillary Equipment during the term of this Agreement;
4.10.6 it must not, nor permit any other person, to sell, let, transfer, dispose of, mortgage, charge, move, add to, modify, repair, service, tamper with or in any way interfere with Ancillary Equipment;
4.10.7 it shall be liable to the Supplier for any loss or damage to Ancillary Equipment, except where the loss or damage is caused by Supplier’s negligence, and shall indemnify the Supplier for costs in repairing or replacing Ancillary Equipment;
4.10.8 the Supplier does not provide any warranty in respect of the Ancillary Equipment but, where possible, will provide the Customer with the benefit of any manufacturer’s warranty;
4.10.9 upon expiry or termination, the Supplier shall be entitled to:
(a) require the Customer (at Customer’s cost and risk) immediately return Ancillary Equipment to the Supplier, its subcontractors or and/or Third-
Party Supplier; or
(b) enter the Site to recover the Ancillary Equipment.
4.11 Notwithstanding the expiry or earlier termination of this Agreement for any reason whatsoever, the Supplier shall have no obligation to remove the
Ancillary Equipment from the Site. In such circumstances, the Customer shall be responsible for its disposal and any associated costs.
4.12 Where the Customer fails to (i) return Ancillary Equipment and/or (ii) facilitate collection of the Ancillary Equipment by the Supplier within 30 days of the request by the Supplier, the Customer will be in breach of the Agreement. In this case the Supplier shall be entitled to charge the Customer a sum equal to the value of the Ancillary Equipment at the date it should have been returned assuming it was kept in good condition and used properly as envisaged by this Agreement (“Non-Return Charge”). The Supplier shall be entitled to invoice the Non-Return Charge and will provide reasonable notice for payment.
HARDWARE FREE OF CHARGE
4.13 Where the Supplier provides the Customer with Hardware free of charge (as stated on the Order), the Supplier is providing the Hardware in consideration for the Customer fulfilling its contractual commitments as set out in the Agreement including but not limited to
4.13.1 paying all Charges due to the Supplier; and
4.13.2 achieving any minimum commitments such as Minimum Term, Minimum Spend or other commitment agreed between the Supplier and Customer.
4.14 Where the Customer fulfils its commitments as detailed at clause 4.12, then upon expiry or termination of the Agreement, title to the Hardware shall pass to the Customer.
4.15 In the event the Customer does not fulfil its commitments to the Supplier as detailed at clause 4.12, the Customer shall be required to return the Hardware to the Supplier upon expiry or termination of the Agreement. Should the Customer fail to return the Hardware within 30 days of a request by the Supplier, the Supplier shall be entitled to invoice the Customer a sum equal to the value of the Hardware as at the date it should have been returned which shall be payable in accordance with clause 6.
4.16 For the avoidance of doubt, paragraphs 4.2 to 4.8 apply in relation to Free of Charge Hardware in addition to paragraphs 4.13 to 4.15 above.
5 SECURITY AND PASSWORDS
5.1 The Customer acknowledges and agrees that it is the sole responsibility of the Customer to set up and maintain appropriate security measures for use of the Services and/or Equipment, including but not limited to:
5.1.1 protecting all passwords and mitigating exposure to any suspected or known security breach by resetting passwords, requesting that accounts are disabled and reporting incidents to the Supplier;
5.1.2 maintaining security and confidentiality of authentication details for online service portals and other services;
5.1.3 employing security devices, including virus checking software;
5.1.4 adequate resilience to protect against loss or connectivity of Services, such as backing up all data, disaster recovery procedures and appropriate power supply; and
5.1.5 secure implementation and management of the
Customer’s systems including any Customer
Equipment to identify and mitigate exposure to theft, fraud and/or deception.
5.2 Where the Customer is or becomes aware of any matters which it knows or ought reasonably to be expected to know constitutes a threat or breach of security, theft, fraud and/or deception (whether actual or attempted) in relation to the use of the Services and/or Equipment, the Customer will immediately advise the Supplier of such matters and where necessary shall report such incidents to the Police.
5.3 The Customer agrees to indemnify and keep the Supplier indemnified for any costs, losses or damages suffered or incurred by the Supplier arising out of or in connection with any claim made or threatened against the Supplier by a third party arising from any Fraudulent Activity due to the Customer’s breach of this clause 5, including any costs or expenses reasonably incurred by the Supplier in investigating any such Fraudulent Activity.
6 CHARGES AND PAYMENT
6.1 Unless otherwise stated in Schedule 3 (Services), Schedule 4 (Support Services) or the Order, Charges for the Services and/or Equipment will be charged in accordance with applicable Tariffs and the Supplier shall invoice the Customer electronically for the Charges payable under this Agreement, unless otherwise specified in writing by the Supplier.
6.2 The Customer acknowledges and agrees that where the Services (or any part thereof, including each Site) are being upgraded or replaced with a different Service, the Supplier shall reserve the right to Charge the Customer for both the existing Services, where they remain Connected and the new Services from the Commencement Date.
6.3 The Customer shall pay all Charges in accordance with the payment terms stated on the invoice, if not stated then, within thirty (30) days of the Commencement Date.
6.4 Unless otherwise stated all amounts due from the Customer to the Supplier under this Agreement shall be paid within seven (7) days of receipt of the Supplier’s invoice.
6.5 Subject to clause 6.17, the Customer agrees to pay the Supplier in full, without any set-off, counterclaim or deduction, all sums due to the Supplier under this Agreement.
6.6 All amounts payable by the Customer under this Agreement are exclusive of value added tax, which the Customer shall be additionally liable to pay the Supplier.
6.7 The Customer shall be responsible for all Charges, unless otherwise stated in Schedule 3 (Services), for the use of the Services, by either the Customer or any third party who has gained access to the Services, with or without the Customer’s knowledge and consent or other Fraudulent Activity in connection with the use of the Services provided under this Agreement.
6.8 Where invoices are paid by credit card, Supplier shall reserve the right to charge an additional amount of 1.8% of the payment value.
6.9 The Customer acknowledges and agrees that the Supplier can vary the amount, frequency and time of any direct debit to such level as the Supplier deems reasonably appropriate to:
6.9.1 take account of either an increase or decrease in the provision of the Services;
6.9.2 to reduce such indebtedness of the Customer to the Supplier, and/or;
6.9.3 such other operational matter effecting the Service as the Supplier shall in its discretion deem reasonable.
The Supplier shall notify the Customer of such variation by giving not less than five (5) Working Days written notice, such notice to be given either on the invoice or on https://www.callagenix.com/ and continued use of the Service is deemed acceptance of the variation.
6.10 The Supplier may vary the Charges at any time by notifying the Customer by post, email, on the Customer Portal, on the Customer’s invoice or on https://www.callagenix.com/ and the revised Charges will apply to all Services provided thirty (30) days after the effective date of the notice.
6.11 The Supplier may invoice the Customer for any Services used under this Agreement at any time following the date on which the Services were used.
6.12 The Charges payable shall be calculated by reference to data recorded by Callagenix or its Third-Party Supplier and not by reference to any data recorded by the Customer. Callaegnix shall be entitled to estimate the Charges where relevant data is not available to Callagenix in a timely manner and such estimated Charges will be reconciled on a subsequent invoice.
6.13 The Supplier may carry out a credit check on the Customer at any time, prior to the Customer and Supplier entering into this Agreement, and throughout the term of this Agreement where there is:
6.13.1 a material adverse change in the financial position of the Customer; or
6.13.2 recent or subsequent non-payment or partial non- payment.
6.14 The Supplier may impose a Credit Limit on a Customer’s account proportionate to the amount of Charges payable under this Agreement and/or require the Customer to pay a deposit or other form of security as a condition in providing the Services and/or Equipment.
6.15 The Supplier may amend any Credit Limit imposed without prior notice to the Customer and if the Customer exceeds such Credit Limit the Supplier may demand immediate payment of all unpaid Charges, whether invoiced or not. The Customer shall remain responsible for all Charges incurred including those exceeding the Credit Limit.
6.16 The Customer acknowledges and accepts that the Supplier may share payment history information with third party credit agencies and by entering into this Agreement hereby provides the authorisation necessary for the Supplier to use payment history information for this purpose.
6.17 If the Customer in good faith disputes the Charges, the Customer shall give written notice to the Supplier of the amount in dispute and the reason for the dispute within seven
(7) days from receipt of the invoice, prior to the Customer not paying any amount to the Supplier. Notwithstanding any dispute raised, the Customer must make payment of the undisputed part of the invoice in accordance with clause 6.3 and 6.4.
6.18 Any rectification or amendment of such disputed Charges already paid are limited to six (6) months prior to the written notice being received and remains at Supplier’s sole discretion not to be unreasonably withheld.
6.19 Notice under clause 6.17 must be received prior to the Customer not paying any amounts due to the Supplier, failure of which shall be deemed a material breach of this Agreement and clause 8.1.1 shall apply, together with clause 6.20 in respect of the entire balance.
REMEDY FOR NON-PAYMENT
6.20 Without limiting any other right or remedy of the Supplier:
6.20.1 if the Customer fails to make any payment due to the Supplier by the due date, the Supplier has the right to charge the Customer (i) an administration fee, late payment fee and/or statutory compensation at the prevailing rates and (ii) interest (both before and after judgement) on the overdue amount at the rate of 8% per annum above Barclays Bank base rate from time to time, until payment in full is made;
6.20.2 if a direct debit is dishonoured or cancelled, the Supplier has the right to charge the Customer a reasonable administration fee; and
6.20.3 Supplier may set off any amount owing to it or its Affiliates by the Customer against any amount payable by the Supplier to the Customer.
6.21 Time for payment is of the essence of this Agreement and a failure to pay on time, a returned or cancelled direct debit, and failure to pay all amounts not in dispute in accordance with clause 6.17 shall be a material breach and the Supplier may terminate this Agreement immediately.
7 SUSPENSION OF SERVICES
7.1 The Supplier may at its sole discretion, without prejudice to any other right under this Agreement and upon giving the Customer written notice electronically, suspend the provision of one or more of the Services under this Agreement, without compensation, until further notice in the following circumstances:
7.1.1 the Customer is in material breach of this Agreement;
7.1.2 the Supplier, its subcontractors and/or Third-Party Supplier in providing the Services to the Customer is obliged to comply with any Applicable Legislation, including but not limited to an order, instruction or request of government, regulatory authority, emergency services organisation or other competent authority;
7.1.3 the Customer exceeds the Credit Limit, fails to give any deposit or other form of security under clause 6.11, or in the reasonable opinion of the Supplier is deemed a debt risk; or
7.1.4 the Supplier has reasonable grounds to believe that the Customer is in breach of its obligations under clause 3 and clause 5.
7.2 Where the Supplier exercises its rights under clause 7.1 as a consequence of the breach, fault, act or omission of the Customer, the Charges will continue to be payable to the Supplier and the Customer shall pay to the Supplier all reasonable costs and expenses (including any Third-Party Supplier costs and expenses) incurred by the implementation of such suspension and recommencement of the provision of Services.
7.3 The Supplier reserves the right to suspend or withdraw the Services or any part thereof at any time for business, operational or technical reasons, where the Supplier is no longer able to provide the Service, including but not limited to:
7.3.1 the suspension, termination or expiry of the agreement in place with its Third-Party Supplier, which the Supplier requires to provide the Services under this Agreement to the Customer;
7.3.2 the withdrawal or significant changes to the technology used to provide the Services; or
7.3.3 as the Charges to the Customer are not, in the reasonable opinion of the Supplier, sufficient to ensure that the provision of Services continue to be commercially viable for the Supplier; and for which the Supplier is unable to find a replacement Third-Party Supplier having used its reasonable commercial endeavours, the Supplier may terminate this Agreement in accordance with clause 8.3.
8.1 Either party shall be entitled to terminate this Agreement immediately by giving written notice to the other party if:
8.1.1 the other party commits a continuing or material breach of this Agreement and, if the breach is capable of remedy, fails to remedy such breach within fourteen
(14) days after written notice giving full particulars of the breach and requiring it to be remedied;
8.1.2 an event under clause 9.6 prevents the performance of the whole or a substantial part of the other party’s obligations in relation to that Service for a continuous period of ninety (90) days after the date on which it should have been performed;
8.1.3 an administrator takes possession, or a receiver is appointed over any of the property or assets of the other party, the other party makes a voluntary arrangement with its creditors or becomes subject to an administration order, the other party becomes bankrupt or goes into liquidation (except for the purposes of a solvent amalgamation, reconstruction or other reorganisation and where the company resulting from the reorganisation effectively agrees to be bound by or to assume the obligations of the other party under this Agreement); or
8.1.4 the other party ceases, or threatens to cease, to carry on business.
8.2 For the purposes of clause 8.1, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
8.3 The Supplier may terminate this Agreement immediately by giving notice in writing to the Customer if:
8.3.1 any licence, approval, agreement or any approval under which the Supplier has the right to provide the Services under this Agreement is revoked, amended or otherwise ceases to be valid;
8.3.2 where the Supplier has exercised its rights in accordance with clause 7.3 and has not been able to appoint a replacement Third-Party Supplier;
8.3.3 where the Supplier is instructed by any competent legal or regulatory authority to cease provision of the Services to the Supplier;
8.3.4 in the reasonable opinion of the Supplier, the Customer is suspected of involvement with fraud or attempted fraud in connection with the use of the Services and/or Equipment or this Agreement;
8.3.5 if the Customer is in breach of this Agreement in such a way that the Supplier may be in breach of any Applicable Law and/or in breach of any agreements with its third-party providers required to provide the Services;
8.3.6 where the Customer commits persistent non-material breaches (which in aggregate amount to a material breach);
8.3.7 the Customer fails to pay the Supplier, or the Supplier reasonably suspects that the Customer is unable to pay or is refusing to pay the Charges in accordance with this Agreement; and
8.3.8 a Change of Control takes place or is proposed.
8.4 A waiver by either party of a breach of a provision of this Agreement shall not be considered as a waiver of a subsequent breach of the same or another provision.
8.5 The Customer may terminate this Agreement by giving the Supplier not more than sixty (60) days and not less than one
(1) months written notice, unless otherwise stated in the applicable Order or Schedule for convenience before the end of the Minimum Term.
8.6 Where the Customer moves the Services or part thereof away from the Supplier, the Supplier reserves the right (in addition to its rights under clause 8.7) to charge the Customer for the Services or part thereof in accordance with clause 8.7 and to amend Charges to the Customer for the remaining Services to its standard published Tariffs.
8.7 If this Agreement is terminated prior to the expiry of the Minimum Term or Successive Term other than where the Customer terminates under clause 8.1, and where the Supplier terminates under clauses 8.3.1 to 8.3.3, the Supplier may invoice the Customer the Termination Charges as further defined in Schedule 3 (Service). The Customer agrees that the Termination Charges are a fair assessment of the losses and damage that the Supplier will suffer as a result of the termination.
CONSEQUENCES OF TERMINATION
8.8 In the event of termination by either party for any reason, the Supplier shall be entitled to recover from the Customer:
8.8.1 any outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
8.8.2 the Ancillary Equipment or the cost incurred effecting the return or collection in accordance with clause
4.9.11 and where the Customer fails to co-operate with such return or collection, payment of the Non- Return Charge;
8.8.3 any Hardware provided free of charge or payment of a sum equal to the value of the Hardware as at the date it should have been returned in accordance with clause 4.12;
8.8.4 all liabilities, claims, costs, losses and expenses incurred and/or accrued by the Supplier;
8.8.5 any committed costs or losses payable to a Third-Party Supplier incurred as a result of such termination, which the Supplier cannot reasonably mitigate;
continued use of the Service following termination will result in the Supplier levying its standard published Tariffs for all Services used, which shall be payable immediately upon demand by the Supplier.
8.9 Termination of this Agreement shall not affect any rights, remedies, obligations or 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 this Agreement which existed at or before the date of termination or expiry.
8.10 Termination of this Agreement for whatever reason shall not operate to affect any provisions that expressly or by implication survive termination.
8.11 Until such time as the Customer has transferred to a new supplier, the Supplier shall be entitled to amend the Charges to its standard published Tariffs upon giving the Customer one
(1) months written notice of any such change and shall be effective for the provision of Services after the date of termination or expiry.
9.1 Except as expressly stated in this Agreement, all warranties and conditions whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
9.2 Nothing in this Agreement shall exclude or restrict in any way the liability of either party arising from or in connection with:
9.2.1 death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors (as applicable); or
9.2.2 fraud, Fraudulent Activity or fraudulent misrepresentation by it or its employees, agents or sub-contractors (as applicable); or
9.2.3 any other liability which cannot be excluded or limited by Applicable Law.
9.3 Subject to clause 9.2, neither party shall be liable to the other party in contract, tort or otherwise for any:
9.3.1 loss of business;
9.3.2 loss of revenue;
9.3.3 loss of profit;
9.3.4 loss of use or corruption of software, data or information;
9.3.5 loss of contracts;
9.3.6 loss of anticipated savings;
9.3.7 indirect, consequential or special loss or damage; or
9.3.8 loss arising from the loss or degradation of data
9.4 Each Party’s liability in tort, contract or otherwise arising out of or in connection with the performance of its obligations under this Agreement shall be limited in aggregate to a sum equal to the Charges payable under this Agreement during the calendar year which the relevant claim arises or two million pounds (£2,000,000) whichever is the lower.
9.5 The Supplier’s liability to pay or credit any Service Credits to the Customer will be counted and calculated for the purpose of the Supplier’s maximum liability under clause 9.4 and shall be the Customer’s sole remedy for the Supplier’s failure to meet the Service Levels.
9.6 Neither party shall be liable for any failure or delay in performance of this Agreement which is caused by circumstances beyond the reasonable control of a party, including without limitation, any act of God, lightening, flood, exceptionally severe weather, subsidence, fire, explosion, war, civil disorder, acts of terrorism, nuclear, biological or chemical incident, national or local emergency, statutory obligation, failure or shortage of power supplies, trade dispute, any act or omission of any competent legal or regulatory authority, or supply of services by third parties.
9.7 In the event that any of the circumstances under clause 9.6 continues for a period of ninety (90) days, the other party will have the right to terminate in accordance with clause 8.1.2.
10 DATA PROTECTION
COMPLIANCE WITH DATA PROTECTION LEGISLATION
10.1 The parties acknowledge and agree that the Customer is the Controller, the Supplier is the Processor for the purposes of Processing Personal Data pursuant to this Agreement.
10.2 The Customer shall at all times comply with all Data Protection Legislation in connection with the Processing of Personal Data and shall ensure that all instructions given to by the Supplier in respect of Personal Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Legislation.
10.3 The Supplier shall process Personal Data in compliance with the obligations placed on it under Data Protection Legislation and the terms of this Agreement.
10.4 The Supplier shall:
10.4.3 ensure that all Supplier personnel Processing Personal Data are bound by duties of confidentiality, and shall only Process the same as is necessary for the purposes of this Agreement;
TECHNICAL AND ORGANISATIONAL MEASURES
10.5 The Supplier shall, taking into account the state of technical development and the nature of Processing, implement and maintain appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful Processing, destruction or accidental loss, alteration, or unauthorised disclosure of the Personal Data.
SUB - PROCESSING
10.6 The Supplier shall:
10.6.2 in the event the Customer consents to the use of a Sub- Processor pursuant to sub-clause 10.6.1above, prior to the relevant Sub-Processor carrying out any Processing activities in respect of the Personal Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 10 that is enforceable by the Supplier and ensure that each Sub-Processor complies with all such obligations; and
10.6.3 remain liable to the Customer under this Agreement for all the acts or omissions of each Sub-Processor as if they were its own;
10.6.4 ensure that all persons authorised by the Supplier or any Sub-Processor to process Personal Data are subject to a binding written contractual obligation to keep the Personal Data confidential.
10.7 The Supplier shall (at the Customer’s cost):
10.7.1 assist the Customer with the Customer’s obligations pursuant to Articles 32 and 36 of the GDPR (and any similar obligations under applicable Data Protection Legislation) taking into account the nature of the Processing and the information available to the Supplier; and
10.7.2 taking into account the nature of the Processing, assist the Customer (by appropriate technical and organisational measures), in so far as is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the Data Protection Legislation in respect of any Personal Data.
NOTIFICATION OF BREACHES
10.8 The Supplier shall where required by law:
10.8.1 notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Personal Data; and
10.8.2 co-operate with the Customer and provide assistance as may be reasonably required in the investigation, remediation and mitigation of the Personal Data Breach.
10.9 The Supplier shall, in accordance with Data Protection Legislation, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 10 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one (1) audit request in any 12 month period under this clause 10.9.
CONSEQUENCES OF TERMINATION
10.10 Upon termination or expiry of this Agreement, at the Customers’ cost and the Customers’ option, the Supplier shall either return all the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any Applicable Law requires the Supplier to store such Protected Data. This clause 10.10 shall survive termination and expiry of the Agreement.
10.11 The Supplier shall not transfer or otherwise process Personal Data outside the UK or EEA unless:
10.11.1 the Supplier is processing Personal Data in a territory which is subject to a current finding by the UK under Data Protection Legislation that the territory provides adequate protection for the privacy of individuals; or
10.11.2 the Supplier transfers Personal Data under the UK’s Standard Contractual Clauses or the ICO International Data Transfer Agreement approved for the transfer of Personal Data outside the EEA and the UK; or
10.11.3 the transfer otherwise complies with Data Protection Legislation.
11 INTELLECTUAL PROPERTY
11.1 All Intellectual Property Rights in the Services and/or Documentation will be owned by the Supplier and its Affiliates, save to the extent that any of the same contain Intellectual Property Rights owned by a Third-Party Supplier, where the Supplier shall use all reasonable endeavours to procure the grant of a similar licence.
11.2 The Supplier hereby grants to the Customer a non-exclusive, non-transferable royalty free licence to use the Supplier’s Intellectual Property Rights within the United Kingdom, subject to the Customers compliance with the terms of this Agreement, solely as necessary for the use of the Services and/or Documentation.
11.3 The Customer shall not at any time have the right under this Agreement to sub-license, assign or otherwise transfer the rights granted in clause 11.2.
11.4 If this Agreement is terminated for whatever reason, this licence will automatically terminate.
11.5 Nothing in this Agreement shall entitle the Customer to any rights in the Intellectual Property Rights of the Supplier, its Affiliates or third-party licensors, nor to any goodwill attached thereto and the Customer further acknowledges that it shall not acquire any rights in respect of the same.
11.6 Where the Supplier has provided Software and/or Documentation necessary for the Customer to make reasonable use of the Services and/or Equipment, the Customer acknowledges and agrees that:
11.6.1 the ownership of and all Intellectual Property Rights in the Software and Documentation remains with the Supplier or its licensors;
11.6.2 the Supplier grants a non-exclusive, non-transferable limited right to use the Software and/or Documentation to the Customer, solely as necessary for the provision of the Service in accordance with the terms of this Agreement. The Customer hereby agrees to comply with the provisions of any Third-Party Software licence as provided for in clauses 3.12 to 3.15 inclusive, which will automatically terminate on expiry or termination of this Agreement;
11.6.3 it will not make any modifications to the Software or Documentation;
11.6.4 it will not (and shall not permit any third party to) copy, adapt, reverse engineer, decompile, disassemble, modify or make error corrections to the Software in whole or part except as permitted by law;
11.6.5 it will not rent, lease, lend, make available or distribute the Software or Documentation, assign the benefit or subcontract the burden of this Agreement in whole or part or allow the Software to become the subject of any charge, lien or encumbrance;
11.6.6 it shall not (and shall not permit any third party to) export the Software, Documentation or any hardware upon which the Software is embedded, out of the UK without the prior written consent of the Supplier or any licensor;
11.6.7 it will not modify, obscure or remove any copyright or proprietary notices on the Software or Documentation;
11.6.8 it permits the Supplier or the Software licensor, upon reasonable notice to enter during Normal Working Hours any premises owned or controlled by the Customer in order to review the Customer’s use of the Software and/or the Documentation and ensure that the Customer is using the same in accordance with this Agreement;
11.6.9 it shall not resell the Services or sub-licence any Software to any third party, without the Supplier’s express consent. Such consent shall be at the Supplier’s sole discretion and subject to the Customer entering into a separate licence;
11.6.10 the Supplier does not warrant that the Software or Documentation is error free and the Customer hereby agrees to make proper back-ups of all data, and;
11.6.11 it shall be responsible, unless otherwise included in Schedule 4 (Support Services) for applying patches, fixes or other temporary repairs and preventative maintenance to the Software to maintain the Software to the licensor’s published specifications or as otherwise applicable to the provision of the Services.
11.7 The Customer will not, and will procure that none of its employees, subcontractors, agents or any third party authorised to use the Service and/or Software, infringe any Intellectual Property Rights owned by the Supplier, its Affiliates or third-party licensors.
11.8 The Customer shall, at all times during and after termination or expiry of this Agreement, indemnify and keep indemnified the Supplier, its Affiliates or third-party licensors against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by the Supplier, its Affiliate or third-party licensors arsing from any claim made against the Supplier, its Affiliate or third-party licensors due to:
11.8.1 the Customer amending or in any way altering the Software or Documentation;
11.8.2 using it for a purpose not permitted by this Agreement, and;
11.8.3 for actual or alleged infringement of a third party’s
Intellectual Property Rights
arising out of, or in connection with, the use of the Services.
11.9 If the Customer becomes aware of any breach of third party rights, as a consequence of the Customer’s use or possession of the Software and/or the Documentation in accordance with the terms of the Agreement, the Customer agrees that it shall:
11.9.1 give the Supplier notice of any such claim within fourteen (14) days of the date on which the Customer is first given notice that the claim has been made:
11.9.2 allow the Supplier or its Software licensors to have sole conduct of the defence or settlement of any such claim, and;
11.9.3 provide the Supplier with all reasonable assistance in conducting the defence or settlement of any such claim and shall make no prejudicial statement or admission of liability.
11.10 For the avoidance of doubt, the Supplier shall have the right at our sole option and expense where there has been a breach as referred to in clause 11.9, to:
11.10.1 procure the right for the Customer to continue using the Software and/or the Documentation so that it such use is no longer infringing;
11.10.2 modify the Services, Software and/or the Documentation so that they become non- infringing without material diminution in their performance or specification so that the provision of the Services is not materially adversely affected.
11.11 Upon termination of this Agreement, the Customer’s right to use the Software and/or Documentation shall cease and the Customer shall, at the Supplier’s absolute discretion, promptly return, or if requested, destroy all copies of the Software and/or Documentation held by the Customer that is in a tangible form, including Software and/or Documentation stored on electronic or optical devices, whether in digital format or otherwise.
12.1 Neither party will disclose the other party’s Confidential Information to any person, except such of its employees, officers, representatives or advisers who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, except as permitted by clause 12.2.
12.2 Nothing in clause 12.1 shall prevent the use or disclosure of any information which:
12.2.1 is or becomes generally available to the public other than as a result of a breach of an obligation under this clause 12;
12.2.2 is acquired from a third party who owes no obligation of confidence in respect of the information;
12.2.3 is or has been independently developed by the recipient without use of the other party’s Confidential Information; or
12.2.4 is required by any court, governmental or regulatory authority, relevant stock exchange or where there is a legal duty or requirement to disclose such Confidential Information.
12.3 This clause 12 will bind the parties during the term of this Agreement and for a period of two (2) years following termination of this Agreement.
13 DISPUTE RESOLUTION
13.1 The parties shall use all reasonable endeavours to resolve any dispute or claim in accordance with the Customer Complaints Code and in good faith.
13.2 Where a dispute or claim arises between the parties that cannot be resolved between the parties as set forth in the Customer Complaints Code, either party may;
13.2.1 escalate the dispute to the Director’s Office; and
13.2.2 if the dispute is not resolved under clause 13.2.1, either party may refer the dispute to an alternative dispute resolution method, which is agreed as appropriate.
13.3 Where the Customer is a Microenterprise or Small Enterprise Customer or a Non-for-Profit Customer, the Customer shall have the right to take unresolved complaints to an approved alternative dispute resolution agency eight (8) weeks after the compliant was made. CISAS is an independent approved alternative dispute resolution agency which provides this service free of charge.
14.1 Unless provided for elsewhere in this Agreement, all formal written notices or instructions given under this Agreement shall be in writing and shall be sent by:
14.1.1 the Supplier to the Customer by post to its principal place of business or such other address as may at the relevant time have been notified pursuant to this clause 14 to the Supplier, and shall be deemed as served on the second day after the same has been posted, on the Customer’s invoice, by email, on the Customer Portal or on its website https://www.callagenix.com/ ; or
14.1.2 the Customer to the Supplier by recorded delivery to its principal place of business or such other address as may at the relevant time have been notified pursuant to this clause 14 to the Customer and shall be deemed as served at the time of delivery.
15 REFER-A-FRIEND SCHEME
15.1 Where stated on the Order the Customer can participate in
the ‘Refer-a-Friend’ scheme (“the Scheme”).
15.2 There is no minimum period to have held an Account with Supplier to participate in the Scheme. The only requirement is that the Referrer’s Account is not suspended for any reason that Supplier deems fit for the Referrer to be ineligible to participate.
15.3 Anyone who is not an existing Customer of Supplier can participate in the Scheme by first placing an Order with Supplier subject to this Agreement.
15.4 To participate in the Scheme, the Referrer must provide their Supplier customer reference number to their Referred Individual. This can be done by any means they wish.
15.5 The Referred Individual will be asked during the Order process to provide the Referrer’s Supplier customer reference number in order for the Referrer to benefit from the Scheme. If the Referred Individual has followed links provided by the Referrer, such as from an email, the Referrer’s Supplier customer reference number will be automatically populated in the correct field.
15.6 Subject to the requirements included in this Schedule, the Referrer will receive £10 of call credit. This will be added automatically to their existing Call Charge Balance.
15.7 Notification will be provided to the Referrer and an invoice will be placed in their Account for the purposes of auditing.
15.8 The Referrer will receive £10 of call credit for every Referred Individual that provides the Referrer’s Supplier customer reference number when completing their FIRST Order only.
15.9 Supplier reserves the right to deem either the Referrer or Referred Individual as ineligible to participate in the Scheme at its sole discretion and without notice.
15.10 A Referred Individual can subsequently go on to participate in the Scheme as a Referrer, once their account with Supplier is set up.
15.11 Call credit earned through participation in the Scheme may not be redeemed for cash. Any call credit earned in the Scheme is non-refundable and non-transferable.
15.12 Supplier reserves the right to deduct any call credit allocated as part of the Scheme at its sole discretion and without notice.
15.13 There are no limits to how many unique Referred Individuals can use one Referrer’s Supplier Customer Reference Number.
15.14 Supplier reserves the right to modify or otherwise change the terms of the Scheme and subsequently this Clause 15 at any time as it sees fit. Supplier shall make such modifications by way of publishing revised terms on the Callagenix website.
15.15 Customers shall be deemed to have accepted any modifications as published from time to time.
15.16 Customers wishing to take part in the Scheme are deemed to have accepted the terms of the Scheme in the form published on the Callagenix website at the date the Referred Individual’s Order is received by Supplier.
16 ASSIGNMENT AND SUBCONTRACTING
16.1 The Customer shall not assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the Supplier’s prior written consent (such consent not to be unreasonably withheld or delayed).
16.2 The Supplier may at any time:
16.2.1 assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement, and/or
16.2.2 provide the Services to the Customer directly and/or through its Affiliates, suppliers, subcontractors and agents,
without prior written notice of such dealing to the Customer, provided that the Supplier remains primarily liable for the acts and omissions of its Affiliates, suppliers, subcontractors and agents.
17.1 Notwithstanding clause 6.10, the Supplier reserves the right at its sole discretion to change the Service, any features of the Service, Equipment, Charges and/or the terms and conditions of this Agreement by giving the Customer not less than thirty
(30) days’ notice, by post, email, by publishing a notice on the Customer’s invoice, the Customer Portal and/or on its website at https://www.callagenix.com/.
18 THIRD PARTIES
18.1 Except as expressly provided for in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
19.1 A waiver by either Party of a breach of a provision of this Agreement shall not be considered as a waiver of a subsequent breach of the same or another provision of this Agreement.
19.2 No failure, delay or omission by either party in exercising any right, power or remedy provided under this Agreement or by law shall operate as a waiver of that or any other right or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy.
19.3 The Customer must bring any legal proceedings against the Supplier in connection with this Agreement within twelve (12) months from the date which the Customer first became aware or ought reasonably to have become aware of the facts giving rise to the liability or potential liability of the Supplier or within the statutory limitation period, whichever is the earlier.
20.1 If any provision of this Agreement (or part of any provision) is held by a court or other competent authority to be invalid or unenforceable in whole or in part, the validity and enforceability of any other provision of this Agreement and the remainder of the provision shall not be affected.
21 ENTIRE AGREEMENT
21.1 The terms and conditions of this Agreement, together with any terms set out in the Order and/or Schedules constitute the entire agreement between the parties, supersede any previous agreement or understanding and, subject to clause
6.10 and clause 17, may not be varied except in writing and signed by the Supplier.
21.2 All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
21.3 In entering into this Agreement, the Customer acknowledges and agrees that it does not rely on any representations which are not confirmed in the terms and conditions of this Agreement, but nothing in this Agreement affects the liability of either party for fraudulent representation.
22 GOVERNING LAW AND JURISDICTION
21.1 This Agreement shall be governed by and construed in accordance with the laws of England and Wales, and the Customer agrees to submit to the exclusive jurisdiction of the courts of England and Wales.
Acceptable Use Policy shall mean the Supplier’s acceptable use policy available at https://www.callagenix.com/ as may be amended by the Supplier from time to time;
Affiliate means, in relation to either Party, a company which is a subsidiary or holding company of it, or any company which, is a subsidiary of any such holding company, “holding company” and “subsidiary” having the meanings ascribed to them in section 1159 Companies Act 2006;
Agreement means the agreement between the Customer and Supplier, which includes the terms and conditions of this Agreement, the Schedules (including any annex thereto), the Tariffs and the Order;
Ancillary Equipment means the equipment (including any Software) owned and licensed by the Supplier, its subcontractors or Third-Party Supplier and placed on the Customer’s premises, which is required to access the Service;
Applicable Law means any legislation, authorisations, permissions, rules, regulations, codes of practice, orders and guidelines relating to the provision and/or use of the Services, including any directives or other requirements issued by any regulator from time to time;
Change of Control means in relation to the Customer where there is a material change in the exercise, control or holding of the voting shares (unless this is due to an internal group reorganisation);
Charges means the fees payable for the Services, Support Services and/or Equipment as set out in the Order, the applicable Schedule 3, and/or in accordance with the Supplier Tariffs as applicable;
Confidential Information means any information of a confidential nature whether disclosed in writing or orally, is expressly stated to be confidential or can reasonably be expected to have been considered confidential, including without limitation, information in relation to a Party’s affairs or business or method of carrying on business and the terms of this Agreement;
Commencement Date means either;
(a) the date the Customer is notified by the Supplier that the Service (or any part of the Service, including each Site) will be ready to use, or;
(b) where Service comprises of multiple Connections, a Connection will be Connected to the Network, or;
(c) if earlier, the date upon which the Customer first uses the Service (or any part of the Service, including each Site) or Connection;
Connection means the connection of the Services (or any part thereof, including each Site) to the Network and “Connected” shall be construed accordingly;
Controller, Data Subject, Personal Data, Processor and Processing shall have the respective meanings given to them in applicable Data Protection Legislation from time to time (and related expressions, including process, processed, processing and processes shall be construed accordingly) and international organisation and Personal Data Breach shall have the respective meanings given to them in the GDPR;
Customer Complaints Code shall mean the Supplier’s complaints code available at https://www.callagenix.com/ as may be amended from time to time;
Customer Equipment means the existing Customer premises equipment and any purchased Hardware (including Software) used by the Customer in connection with the Service, other than the Ancillary Equipment and Rental Equipment;
Customer Network means the Customer’s physical telecommunications and/or data network infrastructure, systems and Equipment located at the Site to which the Services will be connected;
Data Protection Legislation means, as binding on either party or the Services:
(i) the UK General Data Protection Regulation (“GDPR”), the Data Protection Act 2018, and the Privacy and Electronic Communications (EC Directive) Regulations 2003;
(ii) any laws which implement such laws; and
(iii) any laws or regulations which replace, extend, re-enact, consolidate or amend any of the foregoing.
Documentation means the documentation made available to the Customer by the Supplier or by its suppliers or licensors via The Customer Portal or such other website address notified to the Customer by the Supplier from time to time, which sets out a technical description of the Services together with manufacturers recommendations and instructions for use of the Services;
Equipment means the Customer Equipment, Hardware, Rental Equipment and the Ancillary Equipment and as listed in the Order, or where applicable further detailed in Schedule 2 (Equipment);
Fraudulent Activity means any activity which constitutes a threat or breach of security, theft, fraud and/or deception (whether actual or attempted), including but not limited to use of the Services:
(a) without the Customer’s knowledge;
(b) utilizing the Customer’s authentication details; or
(c) from an authenticated IP address.
Good Industry Practice means in relation to any undertaking and any circumstances, the exercise of that degree of skill and care which could be reasonably expected of a highly skilled and experienced professional;
Hardware means physical equipment purchased or provided free of charge by the Customer from the Supplier;
Industry Regulations means rules and regulations set by relevant industry governing bodies which control and/or govern specific business activities (e.g. The Office of Communications “Ofcom”;
Intellectual Property Rights means any copyright, patent, registered design, design rights, utility models, trademarks, trade secrets, know how, database rights, Confidential Information or any other registered or unregistered intellectual property rights of whatever nature subsisting anywhere in the world;
Minimum Term means the initial period of this Agreement as specified in the Order and if not specified shall be the period calculated in accordance with clause 2.1;
MACD Services means the provision of “moves, additions, changes and deletions” being engineering services within the scope of this Agreement which the Supplier is requested to carry out by the Customer in accordance with sub-clauses 3.17 to 3.19 inclusive;
the Customer Portal means the online control panel developed by Callagenix to enable a Customer to access their account and manage all aspects of their Services.
Network means a Third-Party Supplier telecommunications and/or data network providing connectivity to the Service;
Non-for-Profit Customer means as defined by the Ofcom General Conditions from time to time and currently means a customer of a communications provider which is a body for which no more than (10) individual work (whether as employees or otherwise but excluding volunteers) and which, by virtue of its constitution or any enactment:
(a) is required (after payment of outgoings) to apply the whole of its income, and any capital which it expends, for charitable or public purposes; and (b) is prohibited from directly or indirectly distributing among its members any part of its assets (otherwise than for charitable or public purposes);
Normal Working Hours means 09:00hrs to 17:00hrs on a Working Day;
Order means an order issued by the Supplier, a purchase on Supplier’s website or purchase through The Customer Portal for the provision of Services, Hardware, Software and/or Ancillary Equipment under this Agreement;
Professional Services means technical engineer support, including but not limited to project management, planning and design, network assessments, business requirement deliverables, configurations of user interfaces, number porting, phone deployment and training, as specified in the Order and further detailed in Schedule 4.2 (Professional Services);
Quality Standards shall mean a series of documents that provide requirements, specifications, guidelines or characteristics that are used consistently to ensure that materials, products, processes and services meet good quality, such as ISO 9001 Quality Management Systems;
Rental Equipment means the Equipment (including any Software) identified in the Order or the applicable Schedule, leased to the Customer under a separate lease agreement for use by the Customer in connection with the Service, other than the Ancillary Equipment and Customer Equipment;
Schedule 3 (Services) means a series of sub-schedules (including any annex thereto) describing the relevant Services provided under this Agreement;
Schedule 4 (Support Services) means as series of sub-schedules (including any annex thereto) describing the relevant Support Services provided under this Agreement;
Service Credits means the amount payable (if any) by the Supplier to the Customer in accordance with the applicable Services as set forth in Schedule 3 (Services);
Service Levels mean the standard of performance (if any) in relation to the Service in accordance with the applicable Services as set forth in Schedule 3 (Services);
Services means the provision of services, together with any Ancillary Equipment, provided by Supplier to the Customer and as set forth in Schedule 3 (Services) and/or Schedule 4 (Support Services);
Site(s) means (where applicable) a physical location as specified in the Order and where the Equipment shall be located and/or to which the Service will be provided;
Microenterprise or Small Enterprise Customer has the meaning as set out in the Ofcom General Conditions from time to time and currently means a customer of a communications provider acting in the course of a business which is carried out by that customer, and for which not more than (10) individual work (whether as employees or volunteers or otherwise), but who is not himself a communications provider;
Software means the software to be licensed to the Customer as specified in an Order or Schedule together with any imbedded software, which is necessary for the provision of Services and/or use of the Equipment and may also include Third-Party Software;
Supplier means Callagenix Limited, whose registered office is at Bridgford House, Heyes Lane, Alderley Edge, Cheshire SK9 7JP, company registration number 10010712, unless otherwise specified on the Order as an Affiliate of Callagenix Limited.
Support Services means the provision of support services, provided by Supplier to the Customer as specified in the Order and further detailed in Schedule 4 (Support Services);
Tariffs means the applicable tariffs as referred to in this Agreement and the Order for the provision of the Services available on the
Supplier’s website https://www.callagenix.com/ and as periodically updated from time to time;
Termination Charges means any compensatory charges which become due and payable by the Customer to the Supplier on termination of this Agreement before the end of the Minimum Term or Successive Term, in whole or in part, in accordance with clause 8.7 and Schedule 3 (Services);
Third-Party Supplier means a third-party supplier, provider or supplier of services over which the Supplier may utilise for provision of the Services under this Agreement;
Third-Party Software means any Software, the licence terms of which are governed by a separate agreement with the licensor of such software, typically by means of a ‘click wrap’ or ‘shrink wrap’ licence agreement;
Working Day means Normal Working Hours any day other than Saturdays, Sundays, public or bank holidays in the United Kingdom.
SCHEDULE 4.8 – DARK WEB MONITORING SERVICE
1.1 This Schedule 4.8 contains a description of the Dark Web Monitoring Service which form part of the Agreement entered between the Parties for the provision of such Services together with the General Conditions and the documents referred to in clause 1.4 of the General Conditions where applicable.
1.2 Definitions and interpretations that are specific to this schedule are set out in Annex 1 and apply in addition to the definitions and interpretations set out in Schedule 1 (Definitions) of the General Conditions.
1.3 The Supplier agrees to fulfil the Order in accordance with its terms and conditions referred to above to the exclusion of all other terms and conditions, including any terms communicated to the Supplier at any time prior to, with or after acceptance of the Order. Where the Customer provides the Supplier with a Purchase Order in respect of the Services stated on the Order, the Customer will be deemed to have accepted the Order and the applicable terms and conditions of the Supplier to the exclusion of all others in the same way it would had it signed the Order.
2. COMMENCMENT AND DURATION
2.1 This paragraph 2 shall supersede clause 2.1 of the General Conditions.
2.2 The Dark Web Monitoring Service (“the Service”) comprises undertaking scans of a Domain(s), providing alerts where appropriate, and the provision of a monthly report of the results.
2.3 This Agreement shall take effect on the date upon which it has been signed by both parties and shall continue in force unless terminated:
2.3.1 by the Customer giving the Supplier no less than thirty (30) days’ written notice; or
2.3.2 in accordance with clause 8 of the General Conditions.
2.4 Where the Service is provided as a promotional ancillary service subsequently the Agreement in relation to the Service shall be effective on the date upon which the Service is provided by the Supplier and shall continue in force unless terminated:
2.4.1 by opting out of the Service via email notifications and/or reminders provided by the Supplier regarding expiry of the promotional period;
2.4.2 by the Customer giving the Supplier no less
than 30 days’ written notice; or
2.4.3 in accordance with clause 8 of the General Conditions.
3. SUPPLIER OBLIGATIONS
3.1 This paragraph 3 is supplemental to clauses 3.5 to 3.9 of the
3.2 The Supplier shall:
3.2.1 provide the Services in accordance with the Order and in relation to the domain stated by the Customer; and
3.2.2 use its reasonable endeavours to conduct the scan, and both parties agree that these are estimates only and that time shall not be of the essence.
4. CUSTOMER OBLIGATIONS
4.1 This paragraph 4 is supplemental to clauses 3.10 to 3.11 of the General Conditions.
4.2 The Customer shall:
4.2.1 provide the Supplier with full and accurate details of the Customer’s Domain(s) which are to be scanned;
4.2.2 co-operate with the Supplier in all matters relating to the Services including the provision of accurate and complete access, resources, information and facilities in a timely manner to allow provision of Services;
4.2.3 maintain and be fully responsible for all applications, data, interfaces, hardware, and equipment within its control, including but not limited to, appropriate back- ups of all data, software, configuration and other information stored on any computer and operating system or any other hardware or software, and maintain an adequate business continuity and disaster recovery plan; and
4.2.4 perform its obligations under this Agreement with reasonable care and skill.
5. WARRANTIES AND SERVICE LIMITATIONS
5.1 The Customer warrants that:
5.1.1 it is lawfully granting the Supplier the rights and scan the domain(s) which it is being asked to provide in the Services in respect of pursuant to the Agreement;
5.1.2 it will not request the Supplier to undertake any act or omission which will result in a violation by the Supplier or the Customer of the Computer Misuse Act 1990, Data Protection Legislation, the Human Rights Act 1998 and any other Applicable Law;
5.1.3 it has full capacity and authority to enter into this Agreement and to give the warranties in this paragraph 5.1; and
5.1.4 it will indemnify the Supplier in full against any and all claims, liability, losses, costs and expenses (including without limitation reasonable legal expenses) arising from or in connection with any claim brought against the Supplier by a third party in respect of breach by the Customer of the warranties stated in this paragraph 5.1.
5.2 The Customer acknowledges and agrees that the scanning of domain names may expose vulnerabilities and, in some circumstances, could result in the disruption of services and/or access being provided by the Customer to third parties.
5.3 The Customer further acknowledges:
5.3.1 the Services will not be undertaken in a manner which is exhaustive or comprehensive in identifying all issues due to the limited nature and scope of this Service, and the nature of security issues in general. Consequently, the Customer acknowledges that performance of the Services has the objective of improving the visibility of Customer’s security arrangements. The Services will not remedy any identified vulnerabilities or dark web activity as the Supplier will not implement any recommendations which are provided (in respect of which the Customer acknowledges the provisions contained in clause 9 of the General Conditions and paragraph 9 of this Schedule), and there may be security issues including vulnerabilities which are not revealed during the Service due to their limited scope; and
5.3.2 it is permitted to use any materials provided by the Supplier in connection with the Services including the reports solely for their own internal business purposes.
5.4 If the Supplier’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors, consultants or employees, the Supplier shall:
5.4.1 not be liable for any costs, charges, losses or expenses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
5.4.2 be entitled to payment of the Charges despite any such prevention or delay; and
5.4.3 be entitled to recover any additional costs, charges, or losses the Supplier sustains or incurs directly or indirectly from such delay or prevention.
5.5 Without prejudice to the Customer’s right to terminate this Agreement for material breach, the Customer’s sole remedy against the Supplier for any failure on the part of the Services to meet the requirements set forth in the Order will be to require the Supplier to use reasonable endeavours to correct such failure, free of additional charge and within a reasonable time.
6. CHARGES AND PAYMENT
6.1 This paragraph 6 is supplemental to clause 6 of the General Conditions and in the event of express conflict, this paragraph 6 shall take precedence.
6.2 the Supplier shall be entitled to invoice the Customer in advance for the Recurring Charges as detailed in the Order and/or Tariffs and as varied under this Agreement. The Supplier shall be entitled to invoice the Customer monthly in arrears. Where the Customer has an Automatic Top Up account with the Supplier, the Recurring Charges will be deducted from the balance monthly in arrears.
6.3 The Supplier shall also be entitled to invoice the Customer the following:
6.3.1 any work completed by the Supplier at the Customer’s request outside the scope set out in the Order and if no fee is agreed for this work the Supplier shall be paid on a time and materials basis at the Supplier’s Tariffs applicable at the time, unless the Parties otherwise agree in writing; and
6.3.2 any additional Charges, fees, costs, losses and/or expenses that might arise due to breach of this Schedule by the Customer or which the Supplier is entitled to invoice in accordance with this Schedule or the General Conditions.
6.4 If the Customer fails to comply with its obligations under paragraph 4 above, then without prejudice to the Supplier’s other rights and remedies, the Supplier shall be entitled to:
6.4.1 charge the Customer the full Charges for the Services even if it has not been possible to deliver them due to the Customer’s default; and/or
6.4.2 re-arrange or repeat the Services for a subsequent date and charge the Customer for performance of the Service again at that stage.
6.5 In paying for the Services with a credit/debit card, the Customer consents to the details of that card being stored by Supplier and for future payments to be processed in accordance with the terms of this Clause 6. All of the card details stored by Supplier will be visible to the Customer through the Supplier’s Customer Portal.
6.6 The card the Customer uses to make their first payment to Supplier will automatically become that Account’s default card. The Customer will have the option to change the default card on their Account via the Supplier’s Customer Portal.
6.7 Any card listed against the Customer’s Account shall, by default, be listed as an ‘active’ card. The Customer will have the option to disable or delete a card from the system (subject to there always being at least one active card registered against an Account at all times) via The Supplier’s Customer Portal.
6.8 When a payment falls due, whether by virtue of an Automatic Top Up or otherwise, Supplier will attempt to take such payment from the default card listed for that Customer’s Account. Should Supplier be unable to take the payment due from the default card, it will attempt to do so from each of the other active cards on the account. If Supplier is unable to take payment from any of the cards listed for a Customer’s Account, it shall repeat the attempt to take such payment at such intervals as it deems fit until the payment in question has been received (by whatever means). Supplier shall have no liability whatsoever in respect of, and the Customer shall hold Supplier harmless from, any fees that may be charged to the Customer by the Customer’s card issuer arising from any attempt to take payment from that Customer’s card(s).
6.9 If Supplier is unable to take payment in accordance with Condition 6.8, the Customer will be sent notification of that failure and will immediately make the overdue payment, including any accrued interest, using a valid credit/debit card, the details of which will be added to the Customer’s Account as a new default card.
6.10 The Supplier reserves the right to impose an administration charge in the circumstances described in paragraph 6.9. By using a credit/debit card to pay any sums to Supplier, the Customer confirms and warrants to Supplier that the credit/debit card being used belongs to them. Any credit/debit card used by the Customer will be subject to validation checks and authorisation by the Customer’s card issuer. The Customer’s details will be passed to third parties for the purposes of carrying out these checks and reporting any fraudulent activity.
AUTOMATIC TOP UP
6.11 The Customer can activate the Automatic Top Up service by logging in to the Supplier’s Customer Portal. It can be activated either by topping up, when the Customer will see an option to activate the service, or by allocating a saved card on their Account for the Automatic Top Up service.
6.12 Please note, if activated whilst topping up, the first payment will be made with the initiating transaction. It will be active as soon as the payment has been processed. In the case of activating by allocating a saved card, it will be active as soon as the change is confirmed by the Customer. By default, the Threshold shall be set at £5.
6.13 The Customer can change the amount of its Automatic Top Up, the Threshold on their account or the credit/debit card that is debited via the Supplier’s Customer Portal.
6.14 The Customer can also contact the Supplier using the methods detailed on its website who will also be able to make amendments to the amount for any Automatic Top Up, the Threshold on the account or the credit/debit card that is debited.
6.15 If the Customer’s credit or debit card details change at any time, the Customer should contact Supplier immediately or add the new details to their Account using The Supplier’s Customer Portal. If the Customer does not do so, payments to the Customer’s Pay As You Go account may fail meaning that the balance will not be topped up. That may in turn lead to disruption to the Customer’s Voice Services.
6.16 By activating the Automatic Top Up service, the Customer warrants and represents that the credit/debit card being used belongs to the Customer. Any credit/debit card used for the Automatic Top Up services will be subject to validation checks and authorisation by the Customer’s card issuer. The Customer’s details will be passed to third parties for the purposes of carrying out these checks and reporting any fraudulent activity.
6.17 Supplier is entitled to suspend or terminate any Customer’s Automatic Top Up service at any time for any reason and will give the Customer reasonable notice of this where possible.
6.18 Supplier reserves the right to amend or vary the terms of this this Clause 6 or to withdraw the Automatic Top Up payment methods at any time on reasonable notice.
6.19 Supplier cannot be held responsible for payment failures or payment errors caused by third-party software or third- party systems.
7. INTELLECTUAL PROPERTY
7.1 Unless otherwise expressly agreed in this Agreement, no Intellectual Property Rights of either Party are transferred, assigned or licensed as a result of this Agreement.
7.2 Each Party grants the other a non-exclusive royalty free licence of such Intellectual Property Rights as are necessary to enable the other Party to fulfil its obligations under this Agreement and provide or make use of the Services supplied under this Agreement for its internal business purposes but not otherwise.
7.3 The Customer acknowledges and agrees that any and all Intellectual Property Rights in Services and any Deliverables are owned by and shall remain at all times the exclusive property of the Supplier.
8. DATA PROTECTION
8.1 This paragraph 8 is supplemental to clause 10 of the General Conditions and shall only supersede it in the event of an express conflict.
8.2 The Customer acknowledges that for the Supplier to provide Services under this Agreement, the Supplier may be required to process Personal Data, whether such data is obtained by the Supplier while providing the Services or provided by the Customer.
8.3 The Customer further acknowledges that the nature of Services provided by the Supplier are such that: (i) the Supplier may come into contact with Personal Data of any nature whatsoever in the course of providing the Services and it is not therefore possible to identify or limit the categories of Protected Data which may be processed under the Agreement; and (ii) the Protected Data may relate to any data subject where Personal Data is stored on the Customer’s systems.
8.4 Without prejudice to the generality of clauses 10.2 of the
General Conditions, the Customer shall:
8.4.1 ensure it has lawful grounds for processing the Protected Data;
8.4.2 ensure that it has all necessary appropriate consents, and it is entitled to transfer or permit access by the Supplier to the Protected Data so that the Supplier may lawfully use, process and transfer the Protected Data in order to provide the Services for the duration and purpose of the Agreement;
8.4.3 be responsible for maintaining the accuracy of the Protected Data, and the Supplier shall promptly comply with any request from the Customer requiring it to amend or transfer the Protected Data; and
8.4.4 ensure that it implements appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data or its accidental loss, destruction, or damage.
8.5 The Customer shall indemnify in full and keep indemnified the Supplier and hold it harmless from any costs, charge, damages, expense, or loss arising as a result of any failure of the Customer to comply with its obligations under the Data Protection Legislation or this Schedule.
9. LIMITATION OF LIABILITY
9.1 This paragraph 9 is supplemental to clause 9 of the General Conditions and shall only supersede it in the event of express conflict.
9.2 To the extent that the Supplier makes any recommendations or suggestions (whether as part of the Services or otherwise) regarding the Customer taking any action or procuring any products and/or services (including without limitation software), such recommendations and suggestions collectively being referred to as the “Recommendations” and the products, actions and/or services referred to in the Recommendations are referred to as “Solutions, the Customer acknowledges that:
9.2.1 such Recommendations should not form the sole basis for any decision or action by the Customer;
9.2.2 such Recommendations may relate to actions and/or third parties’ products and/or services which are unconnected with the Supplier, and therefore the Supplier has no control over such actions, products and/or services;
9.2.3 it is the Customer’s responsibility to check internally and with any relevant third parties that any Solution is suitable for the Customer’s requirements;
9.2.4 if the Customer procures a Solution, whether the Solution is provided by the Supplier, an Affiliates, or an alternative supplier, it remains the Customer’s responsibility to ensure that any contract provides for rights and remedies it requires it respect of the Solution; and
9.2.5 the Customer will be subject to any risks associated with implementing any actions (whether internally itself or by using a third party) which are related to the Recommendations, and therefore the Customer accepts it must ensure that it provides for its own internal contingency measures to be put in place at its own cost (including but not limited to its own disaster recovery and business continuity measures) and it must putin place its own insurance at its own cost to protect against any risks, losses or liability which flow from the Recommendations or using the Solutions.
9.3 Subject to clause 9.2 of the General Conditions, the Supplier will not be liable for any issues associated with any Solution. The Customer confirms that this is reasonable in view of the provisions contained within this paragraph 9 and clause 9 of the General Conditions.
9.4 Subject to clause 9.2 of the General Conditions, the Supplier will not be liable for any issues, costs or expenses associated with the Customer undertaking any software and/or data restoration and/or configuration. The Customer accepts that that is reasonable in view of the provisions of paragraphs 4.2.3, 5.2, 5.3, 9.2 and 9.5.
9.5 The Customer acknowledges that the Charges have been calculated on the basis that the Supplier will exclude and limit its liability as set out in the Agreement, and that the limitations and exclusions of liability in this Agreement are therefore reasonable.
ANNEX 1 DEFINITIONS
“Deliverables” means all Equipment, products, documents and materials developed or provided by the Supplier in relation to the provision of the Services;
“Domain” means the custom domain name(s) that the Customer has provided to the Supplier for the purpose of providing this Service or for the purposes of providing another Service pursuant to an Agreement or where the domain is a free email domain (e.g. hotmail.com, gmail.com) the Customer’s specific email address on that domain;
“General Conditions” means the Supplier’s standard terms and conditions for the provision of the Services as set forth on the Supplier’s website at https://www.callagenix.com/ and which forms part of the Agreement;
“Order” means an order, quote or proposal issued by the Supplier and accepted by the Customer;
“Protected Data” means the Personal Data received from or on behalf of the Customer or otherwise obtained in connection with the performance of the Supplier’s obligations under this Agreement; and
“Recurring Charges” means the Charges for the Services as stated on the Order and as varied under the terms of this Agreement that are invoiced repeatedly in every billing period as set out in the Order.