1. INTERPRETATION

1.1

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

Acceptance

the formal acceptance by the Customer that the Deliverable has met the Acceptance Testing Criteria;

Acceptance Testing

The relevant testing (if any) of the Deliverable as set out in the Schedule;

Acceptance Testing Criteria

the criteria for the Acceptance Testing which will determine whether or not the Deliverable(s) has met the specification and if there is Acceptance or Deemed Acceptance;

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

and in each of (i) to (iv) as may be amended from time;

Business Day: 08.30 -17:30 on a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

Calls:

telephone calls made on a Line;

CFA:

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

Charges

The charges or fees specified in this Agreement as payable by the Customer;

Commencement Date:

Subject to Clause 2,3, 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 which is created and comes into effect pursuant to and in accordance with these Conditions;

Contract Documents:

any document setting out further specifications, minor adjustments or clarifications of the provisions of the other Contract Documents; the Customer Framework Agreement; the Order Form, 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 Data Protection Laws;

Data Protection Laws

means all laws relating to data protection and privacy which are from time to time applicable to the Company (or any part of their business), including: (i) the Data Protection Act 1998 and all other applicable national laws, regulations and secondary legislation implementing European Directive 95/46/EC; (ii) the GDPR and all related national laws, regulations and secondary legislation, including the Data Protection Act 2018; and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all other applicable national laws, regulations and secondary legislation implementing European Directive 2002/58/EC, in each case as amended, replaced or updated from time to time and together with any subordinate or related legislation made under any of the foregoing.

Data Subject:

an individual who is the subject of Personal Data;

Deemed Acceptance

Where the Acceptance Testing Criteria has been met but has not been formally acknowledged by the Customer;

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;

Early Termination Fees or ETFs

the charges that shall be invoiced by DuoCall to the Customer if either (i) the Contract terminates prior to the Minimum Term due to a breach of these Conditions by the Customer, details of which are set out in the CFA or (ii) if the Customer cancels the Order unless such Order is cancellable in accordance with Clause 2.3;

End-User:

the individual person who actually using the Deliverables;

Force Majeure Event:

has the meaning given to it in Clause 14.1;

GDPR

means the General Data Protection Regulation, Regulation (EU) 2016/679;

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;

Order Enquiry

means an enquiry for Deliverables by a Customer in accordance with Clause 2.1;

Order Form:

means the Customer’s order for the Deliverables from DuoCall which shall be set out on the front page of the CFA once an Order Enquiry has been accepted by DuoCall in accordance with Clause 2.1;

Personal Data:

has the meaning set out in the GDPR 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;

Processing and Process:

have the meaning set out in the GDPR;

Professional Services

any works carried out by or organised by DuoCall in relation to a service request, project or Order;

Professional Services Fee

The fee which DuoCall shall charge the Customer for any Professional Services and regardless of whether there is Acceptance or not;

Schedules:

the schedules to these Conditions;

Service Credits

a credit equal to the sum as set out in the relevant Service Levels for any Service Level Failures;

Service Levels

the levels of service (if any) which are offered by DuoCall in respect of a Deliverable, details of which are set out in the relevant Schedule;

Service Level Failures

any failure to meet the relevant Service Levels;

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.

1.13

In the event of a conflict between the Conditions and the Schedules, the terms of the Schedules shall prevail.

2. COMMENCEMENT AND DURATION

2.1

How to make an enquiry and create an Order

For all Deliverables, the Customer shall make an enquiry for the purchase of certain Deliverables and shall be required to electronically sign the CFA to create an Order Enquiry. DuoCall shall be under no obligation to accept any such Order Enquiry. If, however, DuoCall does accept the Order Enquiry, it shall confirm this to the Customer and an Order shall be created. Once an Order is accepted and created, it shall be legally binding on the Customer and, unless otherwise agreed in writing by DuoCall, and subject to Clause 2.3, be non-cancellable.

2.2

How is a Contract created and when does it start?

For all Deliverables, other than Professional Services, the Contract shall commence on the date on which the CFA has been signed by all the parties which shall, subject to Clause 2.3, be non-cancellable. DuoCall shall provide the Deliverables from the date specified in the CFA. The Minimum Term shall start on the date on which the Deliverables are first made available to the Customer.

2.3

For Professional Services, the Contract shall commence on the date on which the CFA has been signed by all the parties and the Customer shall be immediately liable for all Professional Services Fees incurred by DuoCall.

2.4

Cancelling an Order

Unless otherwise agreed in writing by DuoCall the only circumstances whereby the Customer can cancel an Order which has been accepted by DuoCall in accordance with Clause 2.1, shall be if there are Excess Construction Charges. Under such circumstances, DuoCall shall have the right to waive any ETF’s and allow the Customer to cancel the Order.

2.5

How long does the Contract last?

The Contract shall continue for the Minimum Term, unless terminated earlier in accordance with any express provision of the Contract, and shall automatically continue at the expiry of the Minimum Contract Term for the same period as the Minimum Term (Subsequent Term) unless either party has given to the other party 90 days’ prior written notice to terminate the Contract, such notice not to expire before the end of the Minimum Term or, in the case of renewal, the Subsequent Term.

Please note that early termination fees will apply where the Customer seeks to terminate the Contract prior to the Minimum Term. This will include, but is not limited to, any Third Party Service Provider fees payable upon early termination.

2.6

Time not of the essence

Save in the case of Professional Services, DuoCall shall use reasonable endeavours to provide the Deliverables from the date specified in the CFA although time shall not be of the essence in meeting any such dates.

2.7

Third Party Service Providers

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.

Services that include Third Party Services are subject to the terms and conditions of the relevant Third Party Service Provider. IT Support Services including Microsoft support are subject to a minimum 12 month term, which automatically renews if not terminated by 7 days notice prior to each anniversary. The Customer agrees that the Contract will continue for the duration of the relevant Third Party Service Provider terms and conditions (including Microsoft) and/or the Customer shall be responsible for all fees required to be paid for any earlier termination.

3. CHANGES TO THESE TERMS AND CONDITIONS

When can DuoCall make changes to these Terms and Conditions?

3.1

Save for any changes set out in this Clause 3 or any changes to Charges set out in Clause 4, any amendment to this Agreement will be in writing and signed by both parties.

3.2

Subject to Clause 3.3, 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.

3.3

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:

3.3.1

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

3.3.2

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;

3.3.3

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

3.3.4

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

3.3.5

in order to improve or enhance the Deliverables which DuoCall reasonably determines are needed.

What notice of any such changes will DuoCall provide?

3.4

Where DuoCall is making changes to the Deliverables under Clause 3.3.1 or 4.2, DuoCall shall not be obliged to provide the Customer with any notice but will make reasonable efforts to do so.

3.5

Where DuoCall is making changes to the Deliverables under Clauses 3.3.2-3.3.5:

(i) where such changes (in DuoCall’s reasonable opinion), are materially detrimental to the Customer and the Customer regularly uses the relevant part of the Deliverables that is being affected by such change, DuoCall shall provide the Customer with as much advance notice as practicable but, in any event, no less than 30 days’ notice prior to implementing the changes; or

(ii) where such changes (in DuoCall’s reasonable opinion) are not materially detrimental to the Customer or where the Customer does not regularly uses the relevant part of the Deliverables that is being affected by such change, DuoCall may update or withdraw the Deliverables without notice of such change.

4. CHARGES AND PAYMENT

4.1

Where are the Charges set out?

In consideration of the provision of the Deliverables, the Customer shall pay to DuoCall the Charges specified in the CFA and in each case subject to any applicable Minimum Threshold.

4.2

When can the Charges be changed?

RPI Increases: DuoCall reserved the right to change its prices on an annual basis to apply an increase to all or any Charges equal to the Retail Prices Index (RPI) rate published by the Office for National Statistics (or by any other body to which the function of that office may be transferred) in January of that year (RPI Rate). If the RPI Rate is negative then no increase will be applied. Any other increases to Charges shall be in accordance with Clause 4.3 below.

4.3

Third Party Service Provider increases: DuoCall may vary at any time its 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 or to take into account an increase . DuoCall shall use reasonable endeavours 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

When and how DuoCall raise invoices

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

Credit Check

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.

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

Credit Limits

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 4.9.2.

4.8

How Charges are calculated and paid

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

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

4.9.2

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 charge upon re-instating access to the Deliverables.

4.11

Disputing an invoice

If the Customer believes in good faith that there is an error made in the calculation of any Charges, the Customer must provide written notice to DuoCall identifying the error within 7 days of receipt of notification of the Charges in question, otherwise the Customer shall be deemed to have accepted the charges as being valid and properly due. The Customer shall pay any undisputed part of the payment due to DuoCall pending resolution of the dispute. This Clause applies without limiting any other remedy DuoCall may have under the Contract.

4.12

Cancelling an engineer/DuoCall visit

if the Customer cancels any appointment for an engineer or other representative of DuoCall to visit the Customer’s premises for the purpose of providing Deliverables where cancellation takes place less than 72 hours in advance, DuoCall reserves the right to charge the Customer, in accordance with DuoCall’s standard rates and Charges, details of which are available on request.

4.13

Interest

If payment is not made within our terms and has not been validly disputed in accordance with Clause 4.11 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 of the Bank of England plc. Any such interest shall accrue from the date the payment was due to the date upon which it was either paid or when judgement is entered by the courts of England and Wales.

5. CUSTOMER’S OBLIGATIONS

5.1

What the Customer must do:

The Customer shall:

5.1.1

co-operate with DuoCall in all matters relating to the Deliverables;

5.1.2

provide, for DuoCall, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities either as specified in the relevant Schedule or as reasonably required by DuoCall from time to time to enable it to provide the Deliverables or comply with its obligations under the Contract;

5.1.3

provide to DuoCall in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or a third party) reasonably required by DuoCall in connection with the Deliverables and ensure that they are accurate and complete in all respects;

5.1.4

comply fully and procure that all relevant persons comply fully with all Applicable Law relating to the use and enjoyment of the Deliverables;

5.1.5

use and maintain the Deliverables in accordance with all recommendations and instructions issued by DuoCall from time to time;

5.1.6

be responsible for any engineering, reprogramming or other costs of any kind which DuoCall reasonably incurs in connection with the termination of any services, or the removal of any equipment or materials, provided to the Customer by a previous supplier;

5.1.7

pay the Charges and acknowledges and accepts that to the extent any Deliverables are subject to ETF’s, such ETF’s are agreed and understood by the Customer as representing a genuine pre-estimate of DuoCall’s losses should the Contract be terminated prior to the expiry of the Minimum Term or if the Customer cancels a non-cancellable Order.

5.1.8

What the Customer must not do:

not use or permit or suffer any relevant persons to use the Deliverables for any purpose which is in any way improper, unlawful or immoral or which might reasonably be considered likely to have an adverse effect on DuoCall or any Third Party Service Provider;

5.1.9

not permit or suffer its employees, contractors, agents, representatives or visitors (“relevant persons”) to act or omit to act in any way which might reasonably be considered likely to cause the loss of or damage to any of DuoCall’s Equipment or in any way adversely affect the ability of DuoCall to provide the Deliverables or the quality or functioning of the Deliverables;

5.1.10

not use the Deliverables, or permit or suffer the Deliverables to be used, for any purpose other than one for which they were designed (“unauthorised use”) and notify DuoCall immediately of any unauthorised use;

5.1.11

not transfer or agree or attempt to transfer any telephone number allocated to it for use in connection with the Deliverables; and

5.1.11

not make, and procure that the relevant person does not make, any addition, modification or adjustment to the Equipment without the express prior written consent to DuoCall,

and the Customer shall procure that the End-User undertakes all of the above.

5.2

If the performance of any of DuoCall’s obligations under the Contract is prevented or delayed by any act or omission of the Customer or any relevant person then, without prejudice to any other right or remedy it may have, DuoCall shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.

6. DUOCALL’s RIGHTS AND RESPONSIBILITIES

6.1

DuoCall will use reasonable endeavours to provide the Deliverables in accordance with the Contract and with reasonable care, skill and diligence. However, DuoCall does not warrant that the Deliverables will be free of defects or faults, or that their provision or use will be uninterrupted. The Customer acknowledges that the provision, functioning or performance of the Deliverables may be subject from time to time to technical limitations, including those which may be imposed by Third Party Service Providers or network providers.

6.2

DuoCall may temporarily suspend the provision of any of the Deliverables from time to time for operational or other reasons, including:

6.2.1

routine maintenance, improvements or upgrades to any part of the Deliverables or any equipment or services supplied by any Third Party Service Provider;

6.2.2

replacing, repairing or dealing with any unplanned malfunction, fault, suspected security breach, virus, attack or misuse of the Deliverables or any equipment or services supplied by a Third Party Service Provider;

6.2.3

failure by the Customer to comply with the Contract (including any obligation to pay money) subject to DuoCall having first given not less than 5 Business Days’ notice to the Customer to rectify the failure in question and such failure remaining unrectified upon the expiry of that notice;

6.2.4

as may be required by Applicable Law; or

6.2.5

pursuant to any other express right of DuoCall to do so under the Contract.

6.3

In the event that provision of the Deliverables is suspended under Clauses 6.2.1, 6.2.2 or 6.2.4, DuoCall will take reasonable steps to minimise any disruption to the Customer or any End-User and will, where practicable, endeavour to provide the Customer with 24 hours’ prior notice of any scheduled work. However, the Customer acknowledges that the provision of such notice may not always reasonably be practicable.

6.4

Subject to Clause 9.1, DuoCall shall not under any circumstances be liable for any malfunction, failure, default or limited availability of the Deliverables unless this is due to the wrongful act of DuoCall.

6.5

In relation to the Third Party Services, the following provisions will apply:

6.5.1

DuoCall will use reasonable endeavours to monitor and supervise the provision of Third Party Services, but shall not be liable for any malfunction, fault or defect in, or the non-availability of, any Third Party Services except to the extent arising as the result of any wrongful act or omission on the part of DuoCall;

6.5.2

if any Third Party Service Provider changes in any way the specification of the Third Party Services, replaces them or ceases to supply them, or if DuoCall acting reasonably, decides to replace the Third Party Services, DuoCall shall be entitled to substitute for the Third Party Services an alternative which delivers to the extent reasonably practicable, the same or substantially equivalent functionality and performance in all material respects, and to vary the charges payable by the Customer and any other terms of the Contract. DuoCall shall to the extent reasonably practicable consult with the Customer prior to exercising its rights under this Clause 6.6.2, and shall not unreasonably disregard any representations made by the Customer; and

6.5.3

DuoCall may substitute the Third Party Services with an alternative at any time whenever DuoCall acting reasonably, considers this necessary or desirable in order to improve the performance, functionality or quality of the Deliverables. The provision of Clause 6.5.2 shall apply equally to any substitute of the Third Party Services effected pursuant to this Clause 6.5.3.

6.6

If the Customer has any complaints regarding the quality, performance or functionality of the Deliverables or becomes aware of any problems under the Contract, including under Clause 6.5 regarding the Deliverables, it must promptly provide full details to DuoCall in writing, including the nature and extent of the problem. DuoCall will without limiting any of its other rights take reasonable steps to investigate the matter and to correct any such problems.

7. DELIVERY, TITLE AND RISK

7.1

“DuoCall’s Equipment” means any equipment, including tools, systems, cabling or facilities, provided by DuoCall to the Customer and used directly or indirectly in the supply of the Deliverables, but excluding the Deliverables themselves. Subject to Clause 7.3 and save to the extent (if any) otherwise agreed in writing, all DuoCall’s Equipment shall remain the exclusive property of DuoCall. DuoCall shall be under no obligation to provide the Deliverables using specific or dedicated equipment.

7.2

The Customer shall not be entitled to sell, transfer, lease, charge, assign by way of security or otherwise deal with any of DuoCall’s Equipment.

7.3

If the Deliverables include the provision of any goods in which title is to pass to the Customer:

7.3.1

DuoCall shall supply the goods in question to the location set out in the CFA. Any dates quoted for delivery are approximate only and the time of delivery is not of the essence. DuoCall shall not be liable for any delay in delivery of or failure to supply the goods resulting from the Customer’s failure to provide adequate delivery instructions or any other instructions that are relevant to their supply;

7.3.2

if the Customer fails to accept or take delivery of the goods when rendered, DuoCall shall store the goods until delivery takes place and, except where such failure is the result of DuoCall’s wrongful act or omission, may charge the Customer for all costs and expenses incurred by DuoCall in so doing (including the cost of insurance);

7.3.3

risk in the goods shall pass to the Customer on completion of delivery or, if earlier, when DuoCall receives payment in full (in cash or cleared funds) for the goods. Title to the goods shall pass to the Customer upon the receipt by DuoCall in cleared funds of payment for the goods in question;

7.3.4

until title to the goods has passed to the Customer, the Customer shall maintain the goods in satisfactory condition and keep them insured against on an “all risks” basis for their full replacement value from the date of delivery. The Customer shall in addition notify DuoCall immediately if the Customer becomes subject to any of the events listed in Clause 12.1.1-12.1.10, and give to DuoCall such information relating to the goods as it may require from time to time;

7.3.5

subject to Clause 7.3.6, the Customer may use the goods in the ordinary course of business (but not otherwise) before DuoCall receives payment for them, but shall not dispose of the same in any manner nor charge or encumber them in any way; and

7.3.6

if, before title to the goods passes to the Customer, the Customer becomes subject to any of the events listed in Clause 12.1.1-12.1.10, then, without limiting any other right or remedy that DuoCall may have, the Customer’s right under Clause 7.3.5 ceases immediately and DuoCall may at any time require the Customer to deliver up all goods in the Customer’s possession which have not been resold, or irrevocably incorporated into another product and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the goods are stored in order to recover them and to the extent that the Customer does not control these premises the Customer will procure for DuoCall the right to do so.

8. DATA PROTECTION AND DATA PROCESSING

As a consequence of the existence of this Agreement DuoCall may hold personal data relating to the Customer. This will not be used by DuoCall, other than as may be necessary for the purpose of this Agreement, without the consent of the Customer.

8.1

The parties acknowledge that, for the purposes of the Data Protection Laws , DuoCall is the Data Processor and the Customer is the Data Controller of any Personal Data.

8.2

Each party confirms that it holds, and during the term of this Contract will maintain, all registrations and notifications required in terms of the Data Protection Laws which are appropriate to its performance of its obligations under this Agreement.

8.3

Each party confirms that, in the performance of this Contract, it will comply with the Data Protection Laws.

8.4

DuoCall will:

8.4.1

In accordance with the GDPR, process Personal Data only on written instructions from the Customer or as set out in the Particulars and as necessary for the performance of a contract), unless required to do so by Data Protection Laws or any other applicable law to which DuoCall is subject; in such a case, DuoCall shall inform the Customer of that legal requirement before Processing, unless that law prohibits DuoCall to so inform the Customer;

8.4.2

ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality, as per article 28.3 of GDPR;

8.4.3

take all measures required pursuant to the GDPR in respect of security of Processing;

8.4.4

ensure that DuoCall gain written consent from the Customer before using any subcontractor as a sub-processor, and that any sub-processor DuoCall use in respect of this Contract complies with the provisions of this clause 8 as if it was a party to this Contract;

8.4.5

taking into account the nature of the Processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Laws, to the extent that such requests relate to this Contract and DuoCall’s obligations under it;

8.4.6

assist the Customer in ensuring compliance with the Customer’s obligations pursuant to the GDPR taking into account the nature of processing and the information available to DuoCall;

8.4.7

at the Customer’s option, delete or return all the Personal Data to the Customer after termination of this Contract or otherwise on the Customer’s request, and delete existing copies unless applicable law requires DuoCall’s ongoing storage of the Personal Data;

8.4.8

make available to the Customer all information necessary to demonstrate DuoCall’s compliance with this clause 8.4, and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer (any such audit must be carried out in accordance with DuoCall’s Information Security Management System and Policy and any such auditor must be bound by an appropriate Non-Disclosure Agreement ); and

8.4.9

inform the Customer as soon as is reasonably practicable if, in DuoCall’s opinion, an instruction from the Customer infringes, or, if complied with, might cause the infringement of, Data Protection Laws.

8.5

Each party will notify the other party as soon as is reasonably practicable if it becomes aware of a Personal Data Breach relating to either party’s obligations under this Contract.

8.6

The Customer shall undertake appropriate data protection impact assessments to ensure that Processing complies with Data Protection Laws. DuoCall will provide the Customer with reasonable assistance, where necessary and upon the Customer’s request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.

8.7

It is the Customer’s responsibility to ensure that Personal Data is dealt with in a way that is compliant with the GDPR.

8.8

It is the Customer’s responsibility to ensure that:

8.8.1

it has obtained any and all consents of Data Subjects required in order to commence the Processing in accordance with the GDPR, and that it has recorded or documented these in accordance with the record keeping requirements of the GDPR;

8.8.2

where Personal Data falls within the Special Categories of Personal Data, Article 9(2) applies to that Personal Data before Processing takes place (any request by the Customer to process Special Categories of Personal Data, will be considered by DuoCall on a case by case basis and DuoCall have no obligation to accept such a request and process such data); and

8.8.3

where Article 9(2) of the GDPR does not apply to any Personal Data falling within the Special Categories of Personal Data, no such data will be sent to DuoCall.

8.9

In the event that DuoCall complies with the Customer’s instructions, DuoCall shall not have any Liability to the Customer for any damage caused by Processing or for any consequences in the event that Processing otherwise infringes Data Protection Laws.

8.10

Each party agrees to indemnify, and keep indemnified and defend at its own expense, the other party, against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable, due to any failure by the first party or its employees or agents to comply with this clause 8. This indemnity is subject to the exclusions and limitations of Liability set out in clause 9.

8.11

In the event that the Customer requires a copy of the Customer Personal Data being held by DuoCall, they shall make such a request of DuoCall which must be in writing. Upon receipt of the request and subject to Customer’s payment of any applicable Fees, DuoCall will as soon as is reasonably practicable ordinarily within 30 days of receipt of the request, provide a copy of the Customer Data in a CSV format only.

9. LIMITATION OF LIABILITY

9.1

What liability cannot be excluded?

Nothing in the Contract shall limit or exclude DuoCall’s liability for:

9.1.1

death or personal injury caused by its negligence;

9.1.2

fraud or fraudulent misrepresentation;

9.1.3

breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession),

or any other liability which cannot be excluded or limited under Applicable Law.

9.2

What DuoCall are not liable for:

Subject to Clause 9.1, DuoCall shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract whether direct or indirect for:

9.2.1

loss of profits;

9.2.2

loss of sales or business;

9.2.3

loss of agreements or contracts;

9.2.4

loss of anticipated savings;

9.2.5

loss or diminution of goodwill;

9.2.6

loss of use or corruption of software, data or information; or

9.2.7

any indirect, special or consequential loss, including loss of any kind to any End-User, however caused and regardless of whether DuoCall was aware of the possibility of such loss or diminution arising.

9.3

DuoCall’s maximum liability under each Contract:

Subject to Clause 9.1, DuoCall’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the lower of £10,000 or the charges payable by the Customer under the Contract in respect of all Deliverables provided during the period of twelve months ending with the date on which the act or omission of DuoCall giving rise to that liability actually occurred, whichever is lower. For the avoidance of doubt any Service Credits raised by DuoCall shall count towards DuoCall’s total liability cap and must be claimed by the Customer within 30 days of the breach of Service Levels which gave rise the credit arising; otherwise any right to claim any such Service Credits will be lost.

9.4

The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

10. INTELLECTUAL PROPERTY

10.1

All Intellectual Property Rights in or arising out of or in connection with the Deliverables shall, as between the Customer and DuoCall, be owned by DuoCall, except as may be expressly provided in the Contract.

10.2

The Customer acknowledges that its use, or the use by any End-User, of any Deliverables in which any Intellectual Property Rights are owned by a third party is conditional on DuoCall obtaining a written licence from the relevant licensor on such terms as will entitle DuoCall to license such use to the Customer. The Customer shall accept, and shall procure that all End-Users accept, such terms as the licensor may require in relation to the use of such Deliverables, whether pursuant to any agreement between the licensor and the Customer or End-User (as the case may be) directly, or which the licensor requires DuoCall to incorporate into the Contract or any other agreement between DuoCall and the Customer.

10.3

The Customer shall not, and shall procure that no End-User shall, modify, reverse engineer, disassemble or decompile, or otherwise attempt to derive the source code of any software, applications or systems contained within the Deliverables, including that of any Third Party Service Provider.

10.4

As between the Customer and DuoCall, all Intellectual Property Rights in Customer Materials are vested in the Customer.

10.5

The Customer grants to DuoCall a non-exclusive licence, with effect from the Commencement Date and coterminous with the Contract, to use any and all Customer Materials in which Intellectual Property Rights vest in the Customer pursuant to the Contract in order to produce the Deliverables or otherwise perform DuoCall’s obligations under the Contract. The Customer warrants that it has the right to grant this licence. DuoCall may sub-license, assign or novate the benefit or burden of this licence in whole or in part as it may see fit from time to time.

11. CONFIDENTIALITY

11.1

Neither party shall disclose to any person any Confidential Information originating from the other except to the extent permitted by Clause 11.2.

11.2

Each party may disclose the Confidential Information originating from the other:

11.2.1

to such of its employees, officers, representatives or advisers who need to know such information for the purposes of exercising that party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall use reasonable endeavours to ensure that its employees, officers, representatives or advisers to whom it discloses such Confidential Information observe the obligations of confidentiality and non-use contained in this Clause 11; and

11.2.2

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, with or without notice being provided to the other party.

11.3

Neither party shall use the Confidential Information originating from the other for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11.4

DuoCall will take reasonable precautions to maintain the security of any Customer’s or End-User’s Confidential Information held by DuoCall for the purposes of providing the Deliverables, subject to any disclosure made under Clause 11.2. However, the Customer is responsible for the management of any passwords issued to it in connection with the Deliverables and shall be responsible for any misuse of such information. The Customer must promptly notify DuoCall if and as soon as it becomes aware of any suspected misuse or security breaches in relation to any part of the Deliverables.

11.5

The following shall not constitute, or as the case may be shall cease to constitute, Confidential Information:

11.5.1

information already known to the receiving party and at its free disposal at the time of receipt;

11.5.2

information disclosed to the receiving party by a third party lawfully entitled to disclose the same, without any obligation of confidentiality being imposed upon the receiving party in respect thereof;

11.5.3

information which, at the time of receipt by the receiving party, is in the public domain, or subsequently enters into the public domain other than as the result of any wrongful act or omission on the part of the receiving party or any of its employees, officers, agents, contractors or representatives; or

11.5.4

information which is required to be disclosed under Applicable Law.

12. TERMINATION

Mutual Rights of Termination

12.1

Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

12.1.1

the other party commits a material breach of any term of the Contract and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;

12.1.2

the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

12.1.3

the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;

12.1.4

a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);

12.1.5

an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);

12.1.6

the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

12.1.7

a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

12.1.8

a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

12.1.9

any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 12.1.2 to Clause 12.1.8 (inclusive); or

12.1.10

the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

DuoCall’s Additional Rights of Termination

12.2

Without affecting any other right or remedy available to it, DuoCall may terminate the Contract with immediate effect by giving written notice to the Customer if:

12.2.1

the Customer fails to pay any amount due under the Contract on the due date for payment, has not disputed all or part of the invoice under Clause 4.11 and the amount remains in default not less than 5 days after being notified to make such payment;

12.2.2

the Customer fails to receive a credit score to the reasonable satisfaction of DuoCall upon performance a credit check;

12.2.3

any service provided by a Third Party Service Provider which is essential to the provision of the Deliverables is terminated or ceases to be available to DuoCall, either in full or to a reasonable quality and standard, and no suitable replacement service is available to DuoCall in its opinion on commercially available and reasonable terms;

12.2.4

an access connection cannot be provided for any reason (at all or to the specification agreed) to any of the Customer or End-User’s premises, taking into account any applicable geographical, practical or technical limitations; or

12.2.5

any authorisation, licence or other permission granted to DuoCall is revoked, withdrawn, not renewed or otherwise no longer available to DuoCall, including under the Communications Act 2003.

Customer’s right to terminate due to a change to the Contract

12.3

If a change under Clause 3 or 4 is materially detrimental to a customer (in the case of increase to Charges, any increase shall be measured on a cumulative basis per calendar year), the Customer may terminate the affected part of the CFA by giving written notice within 30 days of being notified of the change, such notice to only be effective if DuoCall cannot resolve the Customer’s concerns to the Customer’s reasonable satisfaction within 30 days receipt of the termination notice. For the purposes of this clause, an increase to the Customer’s overall monthly invoice of more than 10% (excluding any increase to RPI pursuant to Clause 4.2) in a twelve (12) month period, shall amount to a material detriment.

13. CONSEQUENCES OF TERMINATION

13.1

On termination or expiry of the Contract:

13.1.1

the Customer shall immediately pay to DuoCall all of its outstanding unpaid invoices, interest and any Early Termination Fees, in respect of the Deliverables supplied but for which no invoice has been submitted, DuoCall may submit an invoice, which shall be payable immediately on receipt;

13.1.2

the Customer must immediately return all of DuoCall’s Equipment. If the Customer fails to do so, then DuoCall may enter the Customer’s premises or the premises of any third party where DuoCall’s Equipment is stored in order to take possession of it and to the extent that the Customer does not control these premises the Customer will procure for DuoCall the right to do so. Until DuoCall’s Equipment has been returned or repossessed all risk of loss of or damage to it shall rest with the Customer; and

13.1.3

if the provision of Deliverables to any End-User is to continue under any separate arrangement, the parties agree to negotiate in good faith in relation to any transitional arrangements necessary to minimise disruption to such End-User. DuoCall reserves the right to contact the End-User directly to inform them of such termination or expiry taking place and to charge a reasonable administration fee in respect of such transitional arrangements, including the transferral of any relevant telephone numbers.

13.2

Termination or expiry of the Contract 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 the Contract which existed at or before the date of termination or expiry.

14. FORCE MAJEURE

14.1

For the purposes of the Contract, “Force Majeure Event” means an event or circumstance preventing, hindering or delaying a party from performing its obligations under the Contract which are beyond the reasonable control of the party affected by it. For the avoidance of doubt an inability to pay shall not constitute a Force Majeure Event.

14.2

DuoCall shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents DuoCall from providing any of the Deliverables for an aggregate period of more than 180 days in any period of 265consecutive days, DuoCall shall have the right to terminate the Contract with immediate effect by giving notice to the Customer.

14.3

If a party (“the affected party”) is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event, the affected party shall:

14.3.1

as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract;

14.3.2

provide updates to the other party in relation to any information supplied under Clause 14.3.1 immediately upon the same becoming available.

14.3.3

use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

15. ASSIGNMENT AND OTHER DEALINGS

15.1

The Customer shall not assign, transfer, mortgage, charge, sub-contract, or deal in any other manner with any of its rights and obligations under the Contract without the express prior written consent of DuoCall.

15.2

DuoCall may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

16. WAIVER

16.1

A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

16.2

A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

17. RIGHTS AND REMEDIES

The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

18. SEVERANCE

18.1

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of the Contract,

18.2

If one party gives notice to the other of the possibility that any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

19. ENTIRE AGREEMENT AND FURTHER ASSURANCE

19.1

The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

19.2

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

19.3

Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.

19.4

Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the Contract.

19.5

Nothing in these Conditions purports to limit or exclude any liability for fraud.

20. NO PARTNERSHIP OR AGENCY

20.1

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

20.2

Each party confirms it is acting on its own behalf and not for the benefit of any other person.

21. THIRD PARTY RIGHTS

No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.

22. NOTICES

22.1

Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

22.1.1

delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

22.1.2

sent by email to the address, if one is specified, in the CFA.

22.2

Any notice or communication shall be deemed to have been received:

22.2.1

if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, provided that, if the actual time of delivery is later than 16.00 hours local time, that notice shall be deemed to have been served at 09.00 hours local time on the next following Business Day;

22.2.2

if sent by pre-paid first-class post or other next Business Day delivery services, at 09.00 hours local time on the second Business Day after posting or at the time recorded by the delivery service; and

22.2.3

if sent by email, at 09.00 hours local time on the next Business Day after transmission.

22.3

This Clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

23. DISPUTE RESOLUTION

23.1

Choice of Law: The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be exclusively governed by and construed in accordance with the laws of England and Wales.

23.2

Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

23.3

Disputes: If there is a dispute under these Terms and Conditions, both parties shall use the dispute resolution process below:

(i) whichever party is affected will provide the other party with written notice of the complaint that sets out in reasonable detail the full facts and any other supporting documentation;

(ii) both parties will use reasonable endeavours to settle the dispute within 14 days of the receiving the complaint;

(iii) if the dispute is not resolved after 14 days (or for any additional period agreed in writing by the parties) the dispute can be escalated to a senior executive of either party who shall be nominated at the time;

(iv) if the dispute is not settled 14 days after any such escalation, the parties will consider mediation.

23.4

Legal Proceedings: Neither party shall issue legal proceedings in relation to any dispute arising from these Terms and Conditions until the earlier of the conclusion of the escalation procedure referred to under Clause 23.3 or 3 months after the date the dispute was first referred to the escalation procedure. This shall not prevent either party from making an application to any court of competent jurisdiction to obtain any interim relief (including an injunction) at law or in equity in relation to the dispute.

23.5

Time Limits: The Customer shall be required to bring any legal proceedings within 12 months of the date of the dispute, otherwise it shall be time-barred from bringing such proceedings.