DuoCall General Terms and Conditions

General terms and conditions.

General Terms and Conditions

1. INTERPRETATION

1.1

The following definitions and rules of interpretation apply in these Conditions:

Applicable Law:

means:

(i) any applicable statute, regulation, order, statutory instrument or other enactment having the force of law (whether local, governmental or otherwise); or

(ii) the common law of England and Wales; or

(iii) the order of any court or tribunal of competent jurisdiction; or

(iv) any final or provisional order, direction, notice, specification, designation, consent or pending decision of or from the Office of Communication (Ofcom) or any other relevant regulatory or governmental organisation;

Business Day:

a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

Calls:

telephone calls (including reverse charge calls) made on a Line;

CFA:

the Customer Framework Agreement entered into, and signed by or on behalf of, between DuoCall and the Customer;

Commencement Date:

the date specified as such in the CFA, or if later, the date on which any Deliverables are first supplied to the Customer by DuoCall;

Confidential Information:

subject to Clause 11.5, information, of any kind and in whatever form (including oral, written or in electronic, tape, disk, physical or visual form) relating in any way to the business, products or services or personnel of either party, including all know-how, trade secrets, financial, technical or commercial information which either party discloses to the other, or which comes to the other party’s attention, as a result of the parties having entered into this Agreement;

Conditions:

these Terms and Conditions as amended from time to time;

Consumer:

any Customer who is a natural person using the Deliverables outside his or her trade, business or profession;

Contract:

the contract between DuoCall and the Customer for the supply of Deliverables in accordance with these Conditions;

Contract Documents:

any document which the parties intend to be legally binding, including any correspondence between the parties setting out further specifications, minor adjustments or clarifications of the provisions of the other Contract Documents; the CFA; the Schedules; and these Conditions;

Customer:

the person who purchases Deliverables from DuoCall;

Customer Materials:

any document, information or materials supplied by the Customer to DuoCall in order to enable or support the production and supply of the Deliverables;

Data Controller:

has the meaning set out in the applicable data protection legislation in the United Kingdom;

Data Subject:

an individual who is the subject of Personal Data;

Deliverables:

the goods or services to be provided by DuoCall to the Customer as specified in the CFA;

Direct Debit Guarantee:

the guarantee available to Customer’s entering into direct debit arrangements with DuoCall, available on DuoCall’s website from time to time;

DuoCall:

DuoCall Communications Ltd, registered in England and Wales (CRN: 06330709);

DuoCall’s Equipment:

has meaning given to it in Clause 7.1;

End-User:

the individual person who actually using the Deliverables;

Force Majeure Event:

has the meaning given to it in Clause 15.1;

Intellectual Property Rights:

patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, know-how, and all other rights of a similar nature, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Inbound Solutions:

services provided via Non-Geographic Numbers (“NGNs”), including fax to email service, interactive voice response, time of day/day of week routing, call queuing and outbound call recording services;

Internet Access:

any means of connectivity using the internet, including broadband services;

Line:

the apparatus forming part of the network used by DuoCall to connect the Customer to a telephone exchange;

Line Rental:

the provision of a Line in order to connect the Customer to a telephone exchange;

Minimum Term:

the minimum duration of the Contract specified in the Schedules or in the CFA, whichever is longer;

Minimum Threshold:

any minimum threshold applicable to the provision of Deliverables specified in the Schedules or in the CFA, whichever is longer;

Personal Data:

has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which DuoCall is providing Deliverables under the Contract;

Price List:

means DuoCall’s current price list for the relevant Deliverables, as the same shall be amended by DuoCall at its discretion from time to time;

Processing and process:

have the meaning set out in the applicable data protection legislation in the United Kingdom;

Schedules:

the schedules to these Conditions;

Small Business Customer:

any Customer who is neither a communications provider nor a customer for which more than ten individuals work (whether as employees, volunteers or otherwise);

Third Party Service Provider:

any partner, service provider, supplier or subcontractor engaged by DuoCall in the provision of the Deliverables;

Third Party Services

any services (whether or not Deliverables in their own right) which are provided by a Third Party Service Provider; and

VAT:

value added tax chargeable under the Value Added Tax Act 1994.

1.1

Clause, Schedule and paragraph headings shall not affect the interpretation of these Conditions or the Contract.

1.2

The expression “person” includes a natural person, corporate, partnership or unincorporated body (whether or not having separate legal personality).

1.3

The expression “company” includes any company, corporation or other body corporate, wherever and however incorporated or established.

1.4

Unless the context otherwise requires, words in the singular include the plural and those in the plural include the singular.

1.5

Unless the context otherwise requires, a reference to one gender includes a reference to other genders.

1.6

The Contract shall be binding on, and ensure to the benefit of, both DuoCall and the Customer and their respective personal representatives, successors and permitted assigns, and references to either party shall include that party’s personal representatives, successors and permitted assigns.

1.7

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.8

A reference to a statute or statutory provision includes all subordinate legislation made from time to time under that statute or statutory provision.

1.9

A reference to “writing” includes email and the expression “written” shall be construed accordingly.

1.10

The Schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the Schedules.

1.11

References to Clauses and Schedules are to the Clauses and Schedules of these Conditions and references to paragraphs are to paragraphs of the relevant Schedule.

1.12

Any words following the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. COMMENCEMENT AND DURATION

2.1

The Contract shall commence the date on which the CFA has been signed by all the parties or the date on which the Deliverables are first made available to the Customer, whichever occurs later. DuoCall shall provide the Deliverables from the date specified in the CFA. The Contract includes all Contract Documents.

2.2

The Contract shall continue, unless terminated earlier in accordance with any express provision of the Contract, until either party gives to the other party notice to terminate in accordance with the notice period specified in the relevant Schedule. DuoCall shall provide the Deliverables from the date specified in the CFA.

2.3

The Customer acknowledges that DuoCall is dependent on the capacity and resources of its Third Party Service Providers and shall therefore be entitled to decline or refuse to enter into any Contract with the Customer. This includes where DuoCall considers that it or any Third Party Service Provider on which DuoCall is dependent will not have the necessary capacity or resources to fulfil any of DuoCall’s obligations under the Contract.

3. VARIATIONS

3.1

Subject to Clause 3.2, either party may propose changes to the scope, nature or execution of the Deliverables but no proposed changes shall come into effect until such changes have been agreed in writing by both parties.

3.2

DuoCall shall provide the Deliverables to the Customer in accordance with the CFA, however DuoCall reserves the right to make any changes to the Deliverables:

3.2.1

which are necessary to comply with any Applicable Law or safety requirement identified at any time by DuoCall;

3.2.2

in order to make changes for technical, commercial or operational reasons which do not have a material adverse effect on the nature or quality of the Deliverables;

3.2.3

in order to implement any change imposed by a Third Party Service Provider which require subsequent changes to the Deliverables;

3.2.4

in order to improve or maintain the integrity or security of the Deliverables, including any systems belonging to a Third Party Service Provider; or

3.2.5

in order to improve or enhance the Deliverables.

4. CHARGES AND PAYMENT

4.1

In consideration of the provision of the Deliverables, the Customer shall pay to DuoCall the charges or prices specified in the CFA, such as in relation to certain destinations, or, if no such prices or charges are so specified or set out elsewhere, in the Contract or in the Price List, in each case subject to any applicable Minimum Threshold.

4.2

DuoCall may vary at any time the prices and charges referred to in Clause 4.1 by giving notice to the Customer. This may be done in order to reflect any increases in the cost of the Deliverables stipulated by any network provider or Third Party Service Provider, or to reflect any increase in the cost to DuoCall of supplying the Deliverables that is due to any factor beyond its control, including foreign exchange fluctuations, increases in taxes and duties, or any increases in labour, materials or other manufacturing costs. DuoCall shall endeavour to give the Customer not less than 30 days’ notice of any changes, unless such changes need to be implemented within a shorter timeframe, whether due to the requirement of Applicable Law, to cover any cost or expense levied on DuoCall by any network provider or Third Party Service Provider or otherwise, with immediate effect.

4.3

DuoCall shall submit invoices to the Customer for the Deliverables at the times specified in the relevant Schedule. The Customer shall pay each invoice submitted to it by DuoCall in such method and within such timeframe as DuoCall shall specify from time to time in accordance with the relevant Schedule. Time for payment shall be of the essence of the Contract.

4.4

If the Customer has entered into an arrangement with DuoCall to pay any sums due under the Contract by direct debit, the Customer will be protected by the Direct Debit Guarantee. Cancellation of any direct debt arrangement with DuoCall will not under any circumstances relieve the Customer of its payment obligations under the Contract. Should a direct debit payment fail for any reason and this is not due to any fault or wrongful act of DuoCall, DuoCall reserves the right to charge to the Customer an additional administration fee of £5 together with 3% of the amount due to have been collected under the failed direct debit.

4.5

DuoCall reserves the right to perform a credit check on the Customer, with or without notice, and pass on the Customer’s personal information to credit reference agencies who may keep a record of any search that they do. By entering into the Contract, the Customer consents to DuoCall performing such checks and passing on such information under this Clause 4.5.

If payment is not made within our terms [30 days etc] It will be passed to our third party debt recovery specialists where a charge of 15% will be added, plus late interest charges of 8% above base rate.

4.6

If the Customer fails to receive a satisfactory credit rating under Clause 4.5, DuoCall reserves the right to require the Customer immediately to pay to DuoCall the cost of any Deliverables not yet provided. Should the Customer fail to pay such sums within 30 days of notification, DuoCall reserves the right to terminate the Contract or suspend the provision of Deliverables in accordance with Clause 4.9.3.

4.7

DuoCall reserves the right at any time to impose a credit limit on any Customer’s account. Such credit limit may be amended in DuoCall’s absolute discretion from time to time. If such credit limit is exceeded by the Customer, DuoCall may request immediate payment of all sums due under the Contract, terminate the Contract or suspend the provision of Deliverables in accordance with Clause 4.9.3

4.8

All sums payable by the Customer to DuoCall under the Contract:

4.8.1

are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

4.8.2

shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

4.9

Without prejudice to any other right or remedy that it may have, if the Customer fails to pay DuoCall any sum due under the Contract on the due date:

4.9.1

the Customer shall pay interest on the overdue amount at the rate per annum of 4% above Royal Bank of Scotland plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after any judgment. The Customer shall pay the interest together with the overdue amount;

4.9.2

DuoCall may at its discretion require the Customer to provide a bank guarantee, parent company or other company guarantee, or such other security for payment in a form acceptable to DuoCall; and

4.9.3

DuoCall may terminate or suspend access to any part of the Deliverables until payment has been made in full and in cleared funds.

4.10

If DuoCall suspends access to any part of the Deliverables in accordance with Clause 4.9.3, DuoCall reserves the right to charge to the Customer a reasonable re-connection charg