1. DEFINITIONS
"Account" means the record of all Charges due from a Customer.
"Agreement" means the agreement between SWITCH and the Customer in respect of the Services incorporating these terms and conditions.
“Business Day” means a day (not being a Saturday or a Sunday) when the clearing banks are open for business in the City of London
"Charges" means the charges payable in respect of the Services (as amended from time to time in accordance with clause 5.8 below) as set out in the Customer Order Form or as otherwise notified to the Customer before they are incurred.
“Confidential Information” means all information of a confidential nature imparted by either party to the other or which may be imparted from time to time to the other in connection with an Agreement between Switch and the Customer, including but not limited to data of or about Customers or Prospective Customers, drawings, specification and any information relating to the technical affairs or business or product plans of either party.
"Customer" means the party named as such on the Customer Order Form to whom SWITCH agrees to provide Services and by whom Charges are payable.
"Customer Order Form" means Switch's customer order form completed by the Customer.
"Initial Connection" means the time and date when the Services are first made available to the Customer.
“Intellectual Property Rights” means any patents, trade marks, service marks, rights in and designs, registered designs, application or any of the foregoing, copyright, database rights, know-how and other similar rights or obligations whether able to be registered or not in any country.
"ICSTIS" means the Independent Committee for the Supervision of Standards of Telephone Information Services
"Ofcom" means the Office of Communications
"Operator" means the provider of access to the Telecommunications Network.
"Order" means a Customer's order for services made on a Customer Order Form.
"Premium Rate Number" means the telephone number allocated to a Customer for the purpose of enabling the Customer to provide Premium Rate Services
"Premium Rate Services" means telephone services providing information, advice, entertainment or any other services defined from time to time by ICSTIS as being Premium Rate Services
"Revenue" Means sums payable by SWITCH to the Customer in respect of Premium Rate Services
"Services" means connection to the Telecommunications Network, provision of Telephone Numbers and other telecommunications services as set out in one or more Customer Order Forms for the Customer or otherwise notified in writing by SWITCH to the Customer.
"Telecommunications Network" means the public and private telecommunications systems accessed by the Telephone Number or by which the Services are made available.
"Telephone Number" means the telephone number (including Premium Rate Numbers if applicable), allocated to a Customer.
"SWITCH" means Switch Call Ltd.
“Switch Telephone Numbering Plan” means Switch's Telephone Numbering Plan providing details of uses to which Switch number ranges may be put and to which Customers must adhere.
2: PROVISION OF SERVICE
2.1 SWITCH agrees to provide Services to the Customer on the terms and conditions of this Agreement once SWITCH has accepted the Customer's Order. SWITCH will have accepted the order upon the Initial Connection.
2.2 It is estimated that the Initial Connection will be no more than 48 hours after receipt of the Order. SWITCH will notify the Customer if this is not the case.
2.3 The minimum period for the Services is 12 months from the Initial Connection (the "Minimum Period"). This Agreement will continue after the expiry of the Minimum Period unless and until:
2.3.1 it is terminated by either party giving the other not more than two and at least one month's written notice to terminate the Agreement expiring on the first or any subsequent anniversary date of its commencement. In the case of notice given by the Customer, the notice shall not become operative until the Customer receives, by way of acknowledgement, a cancellation acceptance form signed by an officer of SWITCH on Switch's headed note paper; or
2.3.2 in accordance with clause 12 below.
2.4 The Services are supplied subject to all limitations of the Telecommunications Network including the risk of imposed prefix or number changes. In particular SWITCH is unable to guarantee that all overseas systems will be able to access the Customer using the Telephone Number or that telephone keypads will use the same alphanumeric combinations as are currently used in the UK.
2.5 Each Order will with these terms comprise a separate contract between the parties unless the order specifies that it is an amendment to an existing contract.
2.6 Where an Order covers more than one Telephone Number each Telephone Number shall be deemed the subject of a separate and severable Agreement.
2.7 Where the Customer's name or if applicable company registered number on the Customer Order Form is incorrect or incomplete, the Customer agrees that SWITCH may treat as being the Customer the individual or organisation that paid the initial service charge for the Services
3: SWITCH'S OBLIGATIONS
3.1 SWITCH will use reasonable endeavours to provide the Services but SWITCH shall not be liable for any failure resulting from factors outside Switch's control. In particular SWITCH is not responsible for the operation of the Telecommunications Network.
3.2 SWITCH reserves the right from time to time to improve or alter the Services as it deems appropriate, provided that such changes do not substantially change the nature of the Services.
3.3 SWITCH will provide an after sales service and help desk contactable by telephone.
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 SWITCH in connection with the Services or any of them;
4.1.2 pay Switch's charges under this Agreement on or before the due date for payment without set off or deduction;
4.1.3 ensure insofar as is possible that the Telephone Numbers are not used in any unlawful, improper or damaging manner;
4.1.4 indemnify and hold harmless SWITCH against all liabilities, claims, damages, losses, costs and proceedings howsoever arising from any improper use of the Services;
4.1.5 indemnify and hold harmless SWITCH 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 Telephone Number.
4.2 Where the Customer's Order Form includes an order for a Premium Rate Number the Customer shall also:-
4.2.1 provide SWITCH with an accurate description of the Premium Rate Service it intends to provide;
4.2.2 prior to providing the Premium Rate Service ensure that it obtains all necessary licences, authorities and approval from ICSTIS, Ofcom and any other regulatory body relevant to the Premium Rate Service and thereafter maintains such licences, authorities and approval for the duration of this Agreement;
4.2.3 upon the request of SWITCH provide SWITCH with written evidence of such licences, authorities and approval ;
4.2.4 notify SWITCH immediately of any intention on the part of the Customer to change the nature of the Premium Rate Service and obtain Switch's agreement in writing to the proposed change prior to providing the new Premium Rate Service;
4.2.5 ensure the Premium Rate Service:-
4.2.5.1 complies with Switch's Telephone Numbering Plan, all relevant legislation, regulations, guidelines and codes of practice;
4.2.5.2 does not include any material which is defamatory, offensive, indecent, threatening or likely to bring SWITCH into disrepute by virtue of its connection with the Customer;
4.2.5.3 does not refer to SWITCH or the Operator without their prior approval in writing.
4.2.6 The Premium Rate Service may be monitored from time to time by SWITCH in order to ensure compliance with the terms and conditions of this Agreement or by the Operator, ICSTIS or any similar authority to ensure compliance with all applicable legislation, regulations, guidelines and codes of practice.
5: CHARGES AND PAYMENT
5.1 Connection and initial service charges are payable on completion of the Customer Order Form.
5.2 Other Charges are payable on invoice. SWITCH may invoice weekly, monthly, quarterly or annually. If Charges are ascertainable in advance they may be invoiced in advance. In respect of unascertainable future charges SWITCH may require a reasonable security deposit.
5.3 SWITCH may require the Customer to pay by cheque, by standing order credit/debit card or by direct debit. In the event that the Customer is unwilling or unable to pay by Switch's chosen automated means or such automated means are not set up or fail for any reason before SWITCH invoices the Customer an additional administration charge may be levied for each invoice.
5.4 Certain Services (e.g. divert to mobile or international) have additional costs that are outside the control of SWITCH. Where any such charges are increased to SWITCH it shall forthwith advise the Customer and be entitled to increase its own charges for the same Services by the same proportion.
5.5 Invoices are payable within 7 days of their date.
5.6 Overdue payments shall be subject to interest at an annual rate equal to the statutory interest rate chargeable under the Late Payment of Commercial Debts (Interest) Act 1998 both before and after judgement.
5.7 Charges are exclusive of Value Added Tax.
5.8 SWITCH shall in respect of each Service be entitled to review and vary from time to time the Charges and introduce new charges. Subject to clause 5.4 the varied or new charges shall take effect 2 weeks after written notice has been sent to the Customer detailing such variations or new charges.
5.9 Charges may also be imposed in the following circumstances brought about by a Customer request:-
5.9.1 Change of target destination number.
5.9.2 Change of Operator for any Telephone Number.
5.9.3 Change of service provider upon termination of this Agreement in respect of any Telephone Number.
5.9.4 Transfer of any Telephone Number to another subscriber.
5.10 The Customer shall not dispute the amount of any Operator generated Charges unless and then only to the extent that SWITCH is entitled to dispute such charges with the Operator.
6: REVENUE
6.1 The Customer shall be entitled to receive Revenue from SWITCH based on the minutes of call time generated by the use of a Premium Rate Number or where acting as a reseller for Switch Services as recorded in data supplied to SWITCH by the Operator which shall be conclusive for the purpose of calculating Revenue.
6.2 The rate at which Revenue shall be paid shall be agreed between the parties and recorded in a schedule to the Agreement.
6.3 SWITCH shall pay Revenue on a monthly basis in arrears by no later than 30 days of the end of the month in which Revenue is accrued.
6.4 SWITCH shall be entitled to withhold any and all Revenue due to the Customer:-
6.4.1 upon the suspension of the Service in accordance with clause 10;
6.4.2 if SWITCH suspects the Customer is in breach of any term of this Agreement or any other agreement between the parties;
6.4.3 if SWITCH suspects the Customer has increased its entitlement to Revenue by fraudulent or improper means;
6.4.4 if SWITCH has not received the corresponding payment from the Operator
6.5 Where Switch are required by any legislative, advisory or regulatory body, including but not limited to, OFCOM or ICSTIS, to recover any amount from the Customer by way of fine, penalty or charge that has been imposed on the Customer by such body by reason of your use of the Service, Switch will be entitled to offset such payment, fines, penalties or charges against any monies owed by Switch to the Customer.
6.5 SWITCH shall be entitled to set off any Charges due to SWITCH against Revenue due to the Customer.
7: REFUNDS
7.1 SWITCH may provide refunds when the following clauses are met :-
7.1.1 Unless we say otherwise, we will only make a refund either to the person named on the credit card, or to the person who paid for the services.
7.1.2 You must, if you want a refund, state your reasons and prove to us that you are the person named on the credit card or, if this applies, the person who paid for the services.
7.1.3 If the services have been paid for by someone other than the person named on the credit card, we will only make the refund to the person who paid for the services.
7.2 We may refuse a refund if more than 30 days has elapsed since the services were purchased.
7.3 We will pay you a refund in the same way and in the same currency that you used to pay for the services, unless we agree otherwise. For example, if you paid in GB pounds by credit card, we will make a refund in GB pounds to your credit card account. Your statutory rights are not affected
7.4 In the event the Customer terminates the Agreement in accordance with the due notice period, SWITCH shall refund to the Customer the retainer less any sums that are due to SWITCH together with any sums which are not recoverable from any sub-contractor or other third party as will have been paid by SWITCH in connection with the Services less than ten (10) percent of the total sum to be returned by means of a cancellation charge.
8: THIRD PARTIES
8.1 The Customer may allow a third party to use a Premium Rate Number as part of a managed bureau service provided by the Customer in connection with the provision of Premium Rate Services, in which case the Customer shall procure the third party's compliance with the terms of this Agreement, Switch Call Limited's Telephone Numbering Plan, all relevant legislation, regulations, guidelines and codes of practice
9: SWITCH'S LIABILITY
9.1 SWITCH does not exclude or restrict any liability to the Customer for death or personal injury attributable to its own negligence or that of its employees or agents.
9.2 SWITCH shall exercise reasonable skill and care in the provision of the Services.
9.3 Except as stated expressly otherwise in this Agreement, in relation to the provision of Services, SWITCH shall have no obligation, duty or liability in or for contract, tort (including negligence and breach of statutory duty) or otherwise and all other conditions, warranties, terms representations and undertaking, express or implied (whether they are implied by statute, common law or in any other way) are excluded to the fullest extent permitted by law.
9.4 Where any Service has been continuously unavailable to a Customer for a continuous period of more than 7 days (the "Unavailable Period") and not as a result of any action or omission of the Customer or any event beyond the reasonable control of SWITCH the Customer may apply to SWITCH for a rebate of any time based Charges in respect of the unavailable Period and SWITCH shall allow the Customer a proportionate rebate of such time based charges. SWITCH shall have no other liability for failure or unavailability of the Telecommunications Network.
9.5 SWITCH shall not be liable for any indirect or consequential losses, damage or expenses suffered by the Customer including (but not limited to) loss of anticipated sales profits or savings, goodwill, business contracts or losses resulting from third party claims.
9.6 Notwithstanding the provisions of clause 9.3 and subject to clause 9.1, Switch's liability to the Customer for breach of contract shall be limited to £10,000. Any other liability shall be limited to the amount of relevant insurance cover carried by SWITCH.
10: SUSPENSION OF SERVICE
10.1 SWITCH may suspend all or part of the Services or any of them for so long as reasonably required or disconnect the Telephone Number at any time without notice if:-
10.1.1 the Customer is in material breach of this Agreement or any other agreement between the parties and in particular in breach of clause 4 or 5;
10.1.2 the Customer acts in such a way or permits anything to be done which, in the reasonable opinion of SWITCH, relates to the Services and may impair or jeopardise the operation of the Services or any part of the Telecommunications Network;
10.1.3 required to do so directly or indirectly by law, the Operator, Ofcom or ICSTIS;
10.1.4 required for modification or maintenance or in cases of emergency
10.2 In the event of Switch receiving information, from whatever source, which leads Switch to suspect that the Customer may be in breach of any of its obligations under this Agreement, whether regulatory, fraudulent or otherwise, Switch reserve the right to:
10.2.1 withhold any monies due from Switch to the Customer pending the outcome of any investigation by Switch; and
10.2.2 where the Customer is found to be in breach of its obligations under this Agreement, Switch reserve the right to charge the Customer for reasonably incurred administration costs at a rate of £150 per hour plus VAT. Such charges to apply whether incurred before, during or after suspension or termination of Services. Switch undertake to conduct any investigation and to inform the Customer of the outcome of such as swiftly as is reasonably practicable.
10.3 The Customer shall remain liable for all Charges during any period of suspension attributable to the actions or omissions of the Customer and/or further charges as detailed in Clause 6.
11: DATA PROTECTION ACT
11.1 Information that the Customer provides to SWITCH about private individuals relevant to SWITCH's dealings with the Customer will be stored within Switch's computer system and manually.
11.2 For the purpose of the Data Protection Act 1998 ("the Act") SWITCH needs to specify the purposes for which it will use that information. It will of course only use it for legitimate purposes, including:-
11.2.1 communicating with the individuals concerned as necessary in connection with the Customer's dealings with SWITCH.
11.2.2 communicating with the Customer in connection with Switch's services generally;
11.2.3 providing it to third parties as required by the Customer or the law or as necessary in connection with the Customer's dealings with SWITCH (including for inclusion in publicly available directories). Those third parties may be outside the European Economic Area.
11.3 By giving SWITCH that information the Customer consents to SWITCH holding using and disclosing it for those purposes.
11.4 SWITCH is permitted under the Act to hold and use personal data for the purposes specified above. It will not process such data provided by the Customer otherwise than for those purposes or as otherwise required by the Customer.
11.5 SWITCH confirms that it will comply with the Seventh Data Protection Principle under the Act (data security) in relation to all personal data supplied by the Customer.
12: TERMINATION OF AGREEMENT
12.1 The provisions of this clause 12 shall not relieve the Customer from liability to pay to SWITCH all charges incurred by the Customer in respect of any and all telephone calls/facsimile transmissions made by the Customer prior to the termination of this Contract.
12.2 SWITCH may terminate this Agreement immediately by notice in writing to the Customer if:-
12.2.1 the Customer is in breach of any of the terms of the Agreement or any other agreement between the parties and does not remedy the breach within 7 days of the date of written notice from SWITCH specifying the breach and requiring it to be remedied. Where such breach is in Switch's reasonable opinion fraudulent, written notice will be effective immediately and Clauses 6 and 10 will apply.
12.2.2 any licence, permission, agreement or authorisation granted to the Operator or to SWITCH necessary for the provision of the Services is suspended, revoked or terminated; or
12.2.3 SWITCH is unable to recover from the Operator Revenue payments due to the Customer.
12.3 Either SWITCH or the Customer may terminate this Agreement immediately by notice in writing if it has reasonable reason to believe that the other has or will have debts to it which will not be paid when due.
12.4 The Customer can at any time by reasonable notice terminate any Agreement upon the transfer of the Telephone Number the subject of that Agreement to another Operator or service provider. In these circumstances the Customer shall be liable to compensate SWITCH for its likely loss of income under that Agreement (from whatever source) from the date of termination to the date on which the Customer could have first terminated the agreement under clause 2.3.
12.5 Any termination of this Agreement shall be without prejudice to the rights of either party accrued to the date of termination.
13: GENERAL
13.1 SWITCH shall address all bills and serve any notices on the Customer pursuant to this Agreement in writing by post to the address set out in the Order or the Customer's registered office or any other address provided by the Customer for this purpose.
13.2 The Customer shall serve any notice pursuant to this Agreement by post on SWITCH at the following correspondence address (Or another address provided by SWITCH);-
Switch Call Ltd
Switch House, 3 Berkeley Crescent, Clifton, Bristol BS8 1HA
13.3 All documents shall be deemed served 48 hours after posting.
13.4 No failure by SWITCH to exercise any of its rights under these terms and conditions or concession granted and shall prevent subsequent enforcement of those rights or constitute an agreement to provide the same concession again.
13.5 Subject to clause 13.6, the Customer acknowledges that it has not been induced to enter into this Agreement by any representations made before or on entering into this Agreement (whether made negligently or innocently or whether oral or written) and that it has only relied upon matters set out in this Agreement in deciding to enter into this Agreement.
13.6 The Customer acknowledges that the only remedy it has against SWITCH for any misrepresentation or untrue statement shall be a claim for damages for breach of this Agreement. However, if SWITCH has made any fraudulent representations upon which the Customer has relied, the Customer may pursue SWITCH, and the Customer shall be entitled to all available remedies under English law.
13.7 No variation of this Agreement or waiver hereunder shall be effective unless agreed in writing by SWITCH.
13.8 If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these terms and conditions and the remainder of the provisions in questions shall not be affected as a result.
13.9 The Customer shall not assign or try to assign any or all of the rights and responsibilities under the Agreement but SWITCH may transfer its right and obligations hereunder to a new service provider in which circumstances the Customer shall enter into a new agreement in the same terms as this with the new service provider.
13.10 Where two or more persons constitute the Customer their liability is joint and several.
13.11 SWITCH may require a variation to the terms and conditions of the Agreement if so required by legislation, the Operator, OFCOM, ICSTIS or any similar authority.
13.12 Nothing within this Agreement is intended to create third party rights pursuant to the Contracts (Rights of Third Parties) Act 1999.
13.13 Any dispute as to the sum to which SWITCH is entitled pursuant to clause 12.3 shall be referred to a mediator to be appointed by agreement between the parties or in default by the application of ADR Group, Grove House, Grove Road, Bristol BS6 6UN.
13.14 This Agreement is governed by English Law and English Courts shall have exclusive jurisdiction as regards any dispute. |
