Terms and Conditions (October 2014)
Clear Telecoms is a trading name of Clear Telecoms Ltd.
Clear Telecoms Ltd, Unit 3, The John Dickinson enterprise centre, London road, Hemel Hempstead, HP3 9QU
Registered in England & Wales No. 0850 9478 known as “The Company”.
Customer Service Telephone. (01442) 80 70 60
1.1. In these terms and conditions the terms and expressions set out in clause 21 shall have the meanings set out therein and the rules of interpretation shall apply.
2. APPLICATION OF TERMS
2.1. Each Order for the Services by the Customer to the Company shall be deemed to be an offer by the Customer to use the Services subject to these Terms. Subject to any variation under clause 19 the Service Agreement will be on these terms and conditions (“Terms”) to the exclusion of all other terms and conditions.
2.2. No terms or conditions endorsed upon, delivered with or contained in the Customer’s order form, purchase order, confirmation of order, specification or other document will form part of the Service Agreement simply as a result of such document being referred to in the Service Agreement.
2.3. These Terms apply to all the Company’s sales and any variation to these Terms and any representations about the Services shall have no effect unless expressly agreed in writing and signed by a Director of the Company.
2.4. No Order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of the order is issued by the Company or (if earlier) the Company connects the Services.
3.1. The Company provides a variety of Telecommunication Services including but not limited to:
3.1.1 Carrier Pre Select (CPS);
3.1.2 Non-Geographic Numbers (NGN);
3.1.3 Intelligent Network Services (INS);
3.2. The Company will supply to the Customer the Services as shall be specified in the Service Agreement and such Services shall be provided in accordance with these Terms.
3.3. The Company will provide Services which will enable the Customer to route calls over an alternative Telecommunications Network in accordance with the Services.
3.3. Prior to the provision of the Services the Customer will have supplied or shall provide to the Company the Customer Information and any other information required by the Company.
3.4. If the Customer wishes to proceed with the provision of the Services by the Company the instruction can be made verbally on a recorded line or by signing the Service Agreement. This instruction can only be made by an authorised representative of the Customer or authorised party on behalf of the Customer prior to the commencement of the Services by the Company as confirmation that it accurately sets out the Customer’s
requirements and returned to the Company.
3.5. The Customer shall provide to the Company without charge or delay on request from the Company all reasonable assistance as may be so requested by the Company for the purpose of enabling the Company to carry out the Services.
3.6. Prior to the commencement of the Services the Customer shall procure that all licences, way leaves and PTO lines necessary for the provision of the Services have been secured and paid for by the Customer. Upon written request from the Customer, the Company may at its sole discretion offer to the Customer reasonable assistance to secure any licence, way leave and/or PTO line required under the Service Agreement.
3.7. The Customer shall not use the Services:
3.7.1 As a means of communication for a purpose other than that for which the Services are provided; or
3.7.2 for the transmission of any material which is intended to be a hoax call to emergency services or is of a defamatory, offensive, immoral, abusive or of an obscene or menacing character; or
3.7.3 To violate or infringe any rights of or to cause unwanted inconvenience or anxiety to any third party; or
3.7.4 In such a way as to constitute a violation of any laws or regulations of any country; or
3.7.5 For the transmission of any material which is unlawful, fraudulent, harmful, threatening, abusive, indecent,
defamatory, vulgar, obscene, libellous, hateful, or racially, ethnically or otherwise objectionable; or
3.7.6 To directly or indirectly, harm minors in any way or allow or permit such harm to occur;
3.7.7 To “stalk” or otherwise harass another.
In the event that the Company is aware of or reasonably believes that the Customer is misusing the Services as set
out in this clause 3.7 or otherwise and as such that the Services may conflict in any way with OFCOM and/or Phone Pay Plus guidelines, the Company reserves the right to suspend the Service, pending a thorough investigation. For the avoidance of doubt, the Customer hereby agrees that if after investigation the Service is deemed by the Company to conflict in any way with OFCOM and/or Phone Pay Plus guidelines the Company has the right to permanently terminate the service.
3.8. The Customer shall at any time during the continuance of the Service Agreement be entitled to have the Services transferred, at the Customer’s expense, to any other premises within the area operated by the Company.
3.9. The Company reserves the right from time to time to improve or alter the Services as it deems appropriate, provided that such changes do not materially change the nature of the Services.
4. CUSTOMER RESPONSIBILITIES
4.1. The Customer shall at all times:
4.1.1 comply with any reasonable directions or instructions (including requests for assistance or information) issued
from time to time by the Company in connection with the Services or any of them;
4.1.2 indemnify and hold harmless the Company against all liabilities, claims, damages, losses, costs and proceedings
howsoever arising from any improper use of the Services;
4.1.3 Indemnify and hold harmless the Company against all liabilities, claims, damages, losses, costs and proceedings
howsoever arising from a claim by a third party where the third party claims it has the right to prevent the Customer
from using the Services.
5.1. The Charges shall be calculated at the rate stated in the relevant Tariff Sheet.
5.2. The Company shall be entitled to review and vary from time to time the Price.
5.3. Unless otherwise specified the Charges shall be exclusive of any value added tax of which amounts the Customer will pay in addition when the Customer is due to pay for the Services.
5.4. In the event that the Company incurs additional cost and/or charges in supplying the Services to the Customer the Customer will pay such additional costs when it is due to pay for the Services. Any additional cost will be charged to the Customer on a time and materials basis unless otherwise agreed between the parties.
5.5. The Company shall be entitled to issue invoices in respect of the Charges for the provision of the Services on a monthly basis.
5.6. The Company shall prepare and send invoices for usage charges each calendar month in arrears or in such form or manner as shall be agreed with the Customer. Usage charges shall be calculated by reference to the call data records (CDR) received from the Telecommunications Network and not by reference to any data recorded or logged by the Customer and such call data records shall be, in the absence of manifest error, be final and binding.
5.7. In the event of the Telecommunications Network making retrospective amendments to their monthly call data records to the Company, the Company shall be entitled to make similar retrospective amendments to the customer. Any amendment will be shown on the following month’s bill.
5.8. The Company shall charge for additional services which differ from the preferred practice. Non direct debit surcharge shall be charged at £5.00 per month. Paper billing surcharge £2.50 per month. Late payment surcharge £10.00. Reconnection surcharge £50.00. Credit or Debit card payments shall not incur a surcharge with an exception to American Express where there is a 3 percent surcharge.
6.1. Unless otherwise agreed in writing payment of the Charges shall be made within 14 days of invoice in full without any deductions (whether by way of set-off, counterclaim, discount, abatement or otherwise).
6.3. Payment of the Charges shall be made monthly by direct debit or credit / debit card to the Company’s bank account in accordance with the instructions set out in the Service Agreement.
6.4. No payment shall be deemed to have been received until the Company has received cleared funds.
6.5. All payments payable to the Company under the Service Agreement shall become due immediately upon termination of the Service Agreement.
6.6. If the Customer fails to pay the Company any sum due pursuant to the Service Agreement the Customer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England.
6.7. The Company may disconnect, suspend or cancel the provision of the Services or may at its discretion request security for payment from the Customer in the event of late payment.
6.8. The Company shall be entitled to charge additional payment if the Customer is in breach of any of the Service Agreement and/or any of these Terms.
7.1. Upon receipt by the Company of the Customer order for the Services the Company will contact the existing Telecommunications Network to obtain consent to transfer the services. The ability of the Company to provide the customer with the Services will be dependent on all such approvals being obtained.
7.2. The Company will use their reasonable endeavours to connect the Services within 21 days. If no connection dates are specified, connection will be within a reasonable time.
7.3. The Company can refuse to connect the Customer to the Services if any of the information provided to the Company is incomplete or misleading. The Customer is responsible for advising of any changes to their information.
7.4. The Company may change at any time without notice, which Telecommunications Network to use to provide the Service.
8. TERM AND TERMINATION
8.1. Subject to the provisions of clause 14 the Service Agreement will commence on the Connection Date for an initial period of 36 months or as otherwise stated on the Service Agreement (the “Initial Term”) and shall continue thereafter on a rolling 12 month contract unless terminated by either party giving to the other party not less than 1 month’s written notice to expire on the relevant anniversary on the Connection Date.
8.2. The Company may terminate the Service Agreement forthwith at any time by written notice and may disconnect the Services if:
8.2.1 The Customer fails to make any payment when it becomes due or
8.2.2 The Customer commits a material breach of any term of the Service Agreement or under any other agreement between the Company and the Customer; or
8.2.3 the Customer ceases trading or is unable to pay its debts as they fall due or a petition is presented or meeting convened for the purpose of winding the Customer up or the Customer enters into liquidation, whether compulsorily or voluntarily, or compounds with its creditors generally or has a receiver appointed of all or any part of its assets; or
8.2.4 the Customer misuses and/or the Company acting reasonably believes that the Customer has misused the Services as specified in clause 3.8 and/or is in breach of the Phone Pay Plus guidelines; or
8.2.5 Any licence, permission, agreement or authorisation granted to the Operator or to the Company necessary for the provision of the Services is suspended, revoked or terminated.
8.3. The Customer may terminate the Service Agreement up to ten (10) calendar days after the Order for the Services without incurring a cancellation charge. Termination after this period during the first 36 months is subject to a £195 +vat cancellation charge.
8.4. On termination, howsoever arising, the Customer shall:
8.4.1 cease to use the Services;
8.4.2 pay to the Company all arrears and all other costs and expenses, including legal and other fees incurred under the Service Agreement;
8.5. Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Company may have under these Terms or in law.
9.1. The Company shall use all reasonable care and skill to provide the Services in accordance with industry standards.
9.2. The warranty under this clause 9 shall not apply in the event that the Customer or any third party on the Customer’s behalf repairs, adapts, tests, make additions or attachments to the Services. Any alterations or extensions necessary or requested under this clause 9 by the Customer shall only be carried out by the Company at the Customer’s expense.
9.3. The Company does not guarantee:
9.3.1 The supply of the Preferred Number(s) stated in the Service Agreement as the Preferred Number; and/or
9.3.2 The preferred service Connection Date as stated in the Service Agreement.
9.4. The Customer shall only use the Services in accordance with such conditions as the Company may from time to time notify to the Customer in writing and/or in accordance with the relevant provisions of the Telecommunications Act 1984 (or any modification or re enactment thereof) and/or in accordance with the terms of any PTO or OLO licence subject to which the Company and the Company’s service provider operate any direction of the Director General of Telecommunications or other competent authority and any licence granted thereunder which governs the running of a telecommunications system by the Customer.
9.5. The Customer shall indemnify and keep the Company indemnified against all liabilities, claims, damage, losses and costs howsoever arising from any use of the Services in breach of clause 10.5 above.
9.6. All warranties conditions and terms implied by Statute or common law (save for the conditions implied by Section 12 of the Sales of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Service Agreement unless expressly agreed by a Director of the Company.
10. LIMITATION OF LIABILITY
10.1. No claim shall be brought by the Customer for any Event of Default relating to a breach of any provision of the Service Agreement unless notice in writing of such claim (specifying in reasonable detail with supporting evidence the event, matter or default which gives rise to the claim and an estimate of the amount claimed) has been given to the Company within 1 month of the Customer becoming aware of the circumstances which give rise to such claim provided that without prejudice to their rights, the Customer and the Company agree that if they have reason to believe that they may have a cause of action hereunder, they shall liaise with the other in an open and co operative way with a view to rectifying the reason for such cause of action whenever practicable.
10.2. The Company shall not be liable for any delay or failure to provide the Services and/or loss or damage suffered by the Customer as a result of:
10.2.1 Any act or omission of the Customer which is relative to its obligations under the Service Agreement; and/or
10.2.2 Any failures of any third parties to provide their Services;
10.2.3 The Customer failing to test the Services within 14 days of the Connection Date;
10.2.4 The failure of the Customer’s equipment or of any independent contractors’ service equipment including any
software applicable thereto;
10.2.5 The Customer’s negligence or default;
10.2.6 A fluctuation in mains voltage;
10.2.7 A fault of any PTO’s line or equipment;
10.2.8 Electrical interference generated in or radiated by electric, electronic or other similar equipment or materials not supplied by us;
10.3. Notwithstanding any other provision under these Terms or otherwise the Company’s liability to the Customer for:
10.3.1 Death or personal injury resulting from its own or its employees’, agents’ or sub-contractors’ negligence; and/or
10.3.2 any breach of its obligations implied by Section 12 of the Sale of Goods and Services Act 1979 or Section
2 of the Supply of Goods and Services Act 1982; and/or
10.3.3 In relation to any fraudulent misrepresentation or fraudulent acts of it employees shall not be limited.
10.4. Subject to clause 11.3 it is expressly agreed that the Company’s aggregate liability to the Client for any indirect or consequential loss or damage (whether for loss of profit, business, revenue, goodwill or anticipated savings) costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which
arise out of Events of Default, will be limited to 20% of the total fee paid by the Client under the Service Agreement.
10.5. Subject to clause 11.3 the Company’s aggregate liability to the Customer in relation to all claims arising out of Events of Default will be limited to the greater of £1,000 (One Thousand Pounds) or any payment the Customer may receive under clause 11.6 below).
10.6. The Company will use its reasonable endeavours to maintain suitable professional indemnity insurance cover in an amount of
£5 million (or such other amount as may from time to time be agreed between the Company and the Customer) and will on request notify the Customer of the details thereof. The Company accepts that if they can make a claim under their insurance then the Customer shall be entitled to receive the sums received by the
Company from its insurers under such claim. The Customer accepts such amount of insurance cover as an upper limit of liability in respect of the aggregate of all claims made during or in respect of the term of the Service Agreement between the parties. The Company will use reasonable endeavours to pursue any such claim under any such policy of insurance. The Customer expressly accepts that in all circumstances and in respect of any or all claims
it shall be entitled to receive only those sums which are received by the Company from its insurers.
11. COPYRIGHT, PATENTS, TRADE MARKS AND OTHER INTELLECTUAL PROPERTY RIGHTS
11.1. The Customer acknowledges that any and all of the proprietary rights, copyright, trade marks, trade names, patents and other intellectual property rights created, subsisting or used in or in connection with the telephone numbers allocated to the Customer as part of the Services including all documentation and manuals relating thereto (the “Intellectual Property Rights”) which may vest in the Company are legally and or beneficially owned by the
Company. For the avoidance of doubt, the Customer shall not during or at any time after the completion, expiry or termination of the Service Agreement in any way question or dispute such ownership thereof by the Company.
11.2. For the avoidance of doubt the provisions of clause 11.1 shall not be interpreted as granting the Customer any rights in any third party manufacturer’s Intellectual Property Rights or any development or enhancement by a third party manufacturer.
11.3. In the event that new inventions, designs or processes evolve or are generated in the performance of or as a result of the Services the Customer acknowledges that the same shall be the property of the Company as the case may be.
12. DATA PROTECTION ACT
12.1. Information provided by the customer will be stored within the Company’s computer system and manually and is covered by the Data Protection Act 1998.
12.2. The Company will act in accordance with the Seventh Data Principle under the Act (data security) with regards to information supplied by the customer.
13.1. The Customer shall not be entitled to assign the Service Agreement or any part of it without the prior written consent of the Company.
14. FORCE MAJEURE
14.1. If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.
14.2. Notwithstanding any other provision of the Service Agreement, neither party shall be deemed to be in breach of the Service Agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under the Service Agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of such obligations shall be extended accordingly.
14.3. If an event of Force Majeure continues in existence for an aggregate period of three months within any period of twelve consecutive calendar months then the parties shall meet to agree suitable means of alleviating the effects of the Force Majeure. If the parties cannot reach such Service Agreement within one month of the date of the first such meeting and such Force Majeure continues, then either party shall be entitled to terminate the Service Agreement by immediate written notice to the other.
15.1. Both parties shall treat Confidential Information obtained from the other as confidential and shall not without the prior written agreement of the other at any time hereafter (save as required by law or any regulatory organisation with authority over it) disclose such information to any third party (other than those of its officers,
employees advisers and agents whose responsibilities require them to know the same) or use it for any purposes other than for the performance of its obligations pursuant to the Service Agreement (unless such information is in the public domain or is already known to the non-disclosing party otherwise than as a result of a breach of any duty of confidentiality owed in respect of such information).
16.1. Any notice to be given under the Service Agreement shall either be delivered personally or sent by first class, recorded delivery post or facsimile transmission. The address for service of each party shall be its address stated on the Service Agreement or any other address for service previously notified in writing to the other party or (in the absence of any such notification) its last known place of business. A notice shall be deemed to have been served as follows:
16.1.1 If personally delivered, at the time of delivery;
16.1.2 If posted, at the expiration of 48 hours after the envelope containing the same was delivered into the custody of the postal authorities; and
16.1.3 If sent by facsimile during normal business, two hours after the time of transmission.
16.2. In proving such service it shall be sufficient to prove that personal delivery was made or that the envelope containing such notice was properly addressed and delivered into the custody of the postal authority as a prepaid first class recorded delivery letter or that the facsimile (as the case may be) was transmitted to the
17. ENTIRE AGREEMENT
17.1. It is acknowledged and agreed that these Terms (including the documents and instruments referred to herein) (the “Documents”) shall supersede all prior representations arrangements understandings and agreements between the parties relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding between the parties hereto;
17.2. The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Documents (unless such misrepresentation or representation was made fraudulently);
18.1. Failure or delay by the Company in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Service Agreement.
18.2. If any provision of the Service Agreement shall be found by any Court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable the invalidity, illegality or unenforceability of such provision shall not affect the other provisions. The provision found to be invalid, illegal or unenforceable shall be amended to such an extent as is necessary to make that provision valid, legal and enforceable. Any provisions not affected by such invalidity, illegality or unenforceability shall remain in full force and effect.
18.3. Nothing within the Service Agreement is intended to create third party rights pursuant to the Contracts (Rights of Third Parties) Act 1999.
19.1. The Company may require and accordingly reserves the right to modify these Terms at any time so as to comply with the Operator, Ofcom, Phone Pay Plus or any similar authority or to comply with any regulations or other requirements applicable to or imposed upon the Company subject to which the Company operates or by any competent authority.
19.2. Subject to clause 19.1 no purported variation, change or modification of these terms and conditions shall be valid unless confirmed in writing in a document signed by authorised representatives of both parties on or after the date of the Service Agreement which expressly states that it amends the Service Agreement.
20. GOVERNING LAW AND JURISDICTION
20.1. The Service Agreement shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the exclusive jurisdiction of the English Courts.
In these Terms the following expressions shall have the following meanings:
21.1. The “Call Charges” means charges levied upon the Customer for use of the Services calculated in accordance with the relevant Tariff Sheet, Service Agreement or at the rate stated on the company website.
21.2. “Carrier Pre Select” (CPS) means a mechanism used to route calls through to an alternative Telecommunication Network;
21.3. The “Company” means Clear Telecoms Ltd;
21.4. The “Customer” means the person(s), firm or company who enters into the Service Agreement;
21.5. The “Customer Information” means the information that the Customer should provide to the Company in relation to the Services and the Customer’s requirements;
21.6. “Event of Default” means:
21.6.1 Any breach by the Company of its contractual obligations arising under the Service Agreement (other than a breach arising from wilful default or recklessness);
21.6.2 Any misrepresentation by the Company in connection with (whether or not contained in the Service Agreement) the Company or the Services (other than a fraudulent misrepresentation);
21.6.3 Any tortuous, act or omission, including negligence, arising in connection with the Company’s performance under the Service Agreement (other than any act or omission which is fraudulent or dishonest); and/or
21.6.4 Any other act giving rise to a liability in respect of the Service Agreement.
21.7. “Fixed Charge” means the monthly charge levied upon the Customer in line with the relevant Tariff Sheet.
21.8. “Force Majeure” means circumstances beyond the reasonable control of a party which prevents such party from performing its obligations under the Service Agreement including strikes, lock-outs, labour disputes, act of God, including but not limited to, fire, flood, or storm (which have a direct impact on the Company’s ability to provide the Services), war, riot, civil commotion, malicious damage, or the order of any government or public or local authority;
21.9. PhonepayPlus, previously called ICSTIS, regulates premium rate phone numbers and services in the UK;
21.10.“Ofcom” means the Office of Communications;
21.11.“OLO” means Official Licensed Operator;
21.12.The “OLO Licence” means the licence granted to the Company’s service provider to enable the Company to supply the Services (including any amendments or modifications);
21.13.“Operator” means the provider of access to the Telecommunications Network;
21.14.“Order” means a Customer’s order for the Services as set out in the Service Agreement
21.15. “Price” means the fees or charges payable by the Customer in accordance with clause 5 including but not limited to the Fixed Charge(s), and the Call Charges detailed on the relevant Tariff Sheet, Service Agreement or at the rate stated on the company website.
21.16. “PTO” means public telecommunications operator and the “PTO Licence” means the licence granted to a PTO under Section 7 of the Telecommunications Act 1984 and includes any amendments or modifications;
21.17.The “Service Agreement” means the agreement between the Customer and the Company for the Services incorporating these Terms and Conditions;
21.18.“Services” means connection to the Telecommunications Network, provision of Preferred Numbers and other telecommunications services as set out in the Service Agreement or otherwise notified in writing by the Company to the Customer;
21.19.“Service Location” means the premises in which the Services are provided;
21.20.“Tariff Sheet” means a list of Call Charges and Fixed Charges used to calculate the Customer’s monthly bill.
21.21.“Telecommunications Network” means the public and private telecommunications systems accessed by Company by which the Services are made available to the Customers.