YOUR ATTENTION IS CALLED TO CLAUSE 21 BELOW WHICH EXPLAINS HOW TCS LIMITS ITS LIABILITY
(A) By means of certain telecommunications platforms and software which it makes available to Customers via the internet TCS makes the Services available to the Customer in consideration of the payment by the Customer of the Licence Fees.
(B) In addition to the Services TCS may as part of its agreement with the customer supply certain goods.
(C) TCS has agreed to provide and the Customer has agreed to take and pay for the services provided by TCS and (if applicable) the TCS has agreed to supply the Goods to the Customer in each case subject to these terms and conditions.
These terms and conditions are in 4 Parts:
Part 1 contains definitions and interpretation;
Part 2 deals with your licence to use the Services;
Part 3 deals with the supply of goods;
Part 4 contains those terms which apply to all contracts with our customers.
The TCS Customer Service and Fault Notification number is 0113 205 9640. Please note that we sometimes monitor or record telephone calls for training purposes and our normal business hours are Monday to Friday (excluding Bank Holidays) 09:00 to 17:00.
- PART 1 – DEFINITIONS AND INTERPRETATION
- The following words and terms shall have the following meanings:
- Agreement: the agreement between TCS and the Customer made subject to these terms and conditions.
- Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the User Data Base, as further described in clause 2.2(4).
- Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- CSP: the cloud service provider selected from time to time by TCS to host the provision of the Service.
- Commencement Date: the date on which an Order Confirmation Form is signed by you.
- Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 27.
- Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
- the Customer or you: the person named as the Customer in an Order Confirmation Form.
- Customer Data: the data inputted by the Customer, Authorised Users, or TCS on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
- Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
- Equipment: any equipment (including software) supplied by us to you as part of the Services.
- Fair Use Policy: The TCS Fair Use Policy from time to time in force which is available to view here.
- Goods: the Goods (if any) described in an Order Confirmation Form and which are to be provided as part of or in addition to the Services.
- Infrastructure: all or any of the supply of electricity or other utilities, the provision of services by the Network Providers, the CSP, the condition of the Site and your existing equipment and any other conditions being available or suitable for the provision of the Services.
- Initial Term: the initial term of the licence for the Customer to use the Services as set out in an Order Confirmation Form.
- IVR: Interactive Voice Response.
- Licence Fees: the fees payable by the Customer to TCS for the Services, as set out in in an Order Confirmation Form.
- Licence Term: has the meaning given in clause 1 (being the Initial Term together with any subsequent Renewal Periods).
- Mobile Provider: any UK mobile provider including (without limitation) all or any of BT, O2, Vodafone, EE or 3 or any successor to the business of any such providers.
- Network Provider: any network provider including (without limitation) all or any of BT, BT Openreach or any Mobile Provider or any other person, firm or company which TCS may designate as such by notice to the Customer.
- Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
- Order Confirmation Form: the TCS order confirmation form describing the Customer, the Initial Term, the Services and the Licence Fee.
- Price: the price payable for any Goods supplied by us to a Customer as such price is set out in an Order Confirmation Form.
- Renewal Period: the period described in clause 1.
- Services: the provision of voice, fax, text, IVR, recording, voicemail, conferencing and call handling services by TCS by means of the CSP and the TCS Software provided by TCS to the Customer in accordance with these terms and conditions which can be found at https://time-tele.com/ or any other website notified to the Customer by TCS from time to time, as more particularly described in the User Data Base together with such other services (if any) as TCS may provide to the Customer and which are described in an Order Confirmation Form.
- Site: the place or places specified in an Order Confirmation Form or such other place where the Goods or the Services are to be provided by TCS for the Customer.
- Support Services Policy: TCS’s policy for providing support in relation to the Services as made available at https://time-tele.com/ or such other website address as may be notified to the Customer from time to time.
- TCS, us or we: Time Communication Solutions Limited (Company Number 04164139) Time Cloud Solutions Limited (Company Number 11524810) whose registered office is at Unit 1 Newmarket Mews, Castle Gate, Stanley, Wakefield, WF3 4AL or Time Cloud Solutions Limited (Company Number 11524810) whose registered office is at Unit 4 Newmarket Mews, Castle Gate, Stanley, Wakefield, WF3 4AL as such company is described in an Order Confirmation Form
- TCS Software: the online software applications provided by TCS as part of the Services.
- UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
- User Data Base: the information made available to the Customer by TCS online via https://time-tele.com/ or such other web address notified by TCS to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
- User Licence: the non-exclusive user licence which entitles such number of users of the Customer specified in an Order Confirmation Form to access and use the Services and the User Data Base in accordance with the Order Confirmation Form and these terms and conditions.
- VAT: value added tax or any tax which may replace VAT.
- Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause headings shall not affect the interpretation of these terms and conditions.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses are to the clauses in these terms and conditions.
1.11 If the Customer comprises more than one person then the obligations of the Customer shall be joint and several.
PART 2 – LICENCE TO USE THE SERVICES
2. User Licences
2.1 Subject to the Customer paying the Licence Fee for the User Licences in accordance with clauses 3.3 and 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, TCS hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the User Data Base during the Licence Term solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(1) the maximum number of Authorised Users that it authorises to access and use the Services and the User Data Base shall not exceed the number of User Licences it has purchased from time to time. Any variation of the Services or user end points shall constitute a variation of the Customer’s User Licence;
(2) it will not allow or suffer any User Licence to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or User Data Base;
(3) each Authorised User shall keep a secure password for his use of the Services and User Data Base, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;
(4) it shall maintain a written, up to date list of current Authorised Users and provide such list to TCS within 5 Business Days of TCS’s written request at any time or times;
(5) if any password has been provided to any individual who is not an Authorised User, then without prejudice to TCS’s other rights, the Customer shall promptly disable such passwords and TCS shall not issue any new passwords to any such individual; and
(6) if Subscription Fees payable to TCS are underpaid by the Customer, then without prejudice to TCS’s other rights, the Customer shall pay to TCS an amount equal to such underpayment as calculated in accordance with TCS’s prices from time to time for such Services.
(7) The IP address allocated by the Customer for the provision of the Services shall not without the prior written consent of TCS:
(a) be altered by the Customer;
(b) be used on equipment not being part of the Equipment; or
(c) shared with any third party.
The Customer acknowledges and agrees that the unauthorised alteration, use or sharing of its allocated IP address may cause the Services to be disrupted or to become unavailable and accordingly the Customer shall pay any costs of TCS which may be payable to reinstate or restore the Services in such circumstances.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(1) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(2) facilitates illegal activity;
(3) depicts sexually explicit images;
(4) promotes unlawful violence;
(5) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(6) is otherwise illegal or causes damage or injury to any person or property;
and TCS reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(1) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the TCS Software and/or User Data Base (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the TCS Software; or
(2) access all or any part of the Services and User Data Base in order to build a product or service which competes with the Services and/or the User Data Base; or
(3) use the Services and/or User Data Base to provide services to third parties; or
(4) subject to clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or User Data Base available to any third party except the Authorised Users, or
(5) attempt to obtain, or assist third parties in obtaining, access to the Services and/or User Data Base, other than as provided under this clause 2.4.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the User Data Base and, in the event of any such unauthorised access or use, promptly notify TCS.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.7 The Customer shall indemnify TCS for any loss, claim demand or other consequence suffered by TCS as a result of any breach by the Customer of clauses 2.3 to 2.4.
3. Additional User Licences
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Licence Term, purchase additional Services or additional User Licences in excess of the number set out in an Order Confirmation Form and TCS shall grant access to the Services and the User Data Base to such additional Authorised Users or in respect of such additional Services in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional Services or additional User Licences, the Customer shall notify TCS in writing. TCS shall evaluate such request for additional Services or additional User Licences and, if the Customer is not in breach of its obligations and if appropriate in light of the existing Equipment, TCS shall send to the Customer a quotation for such additional Services or such additional User Licences. If the Customer shall approve such quotation, TCS shall activate the additional Services or the additional User Licences as soon as reasonably practicable after the Customer’s approval of such quotation.
3.3 If TCS approves the Customer’s request to purchase additional Services or additional User Licences, the Customer shall, within 30 days of the date of TCS’s invoice, pay to TCS the Licence Fees for such additional Services or additional User Licences as set out in the quotation referred to in clause 3.2 and, if such additional Services or such additional User Licences are purchased by the Customer part way through the Initial Licence Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by TCS for the remainder of the Initial Licence Term or then current Renewal Period (as applicable).
4.1 TCS shall, during the Licence Term, provide the Services and make available the User Data Base to the Customer on and subject to these terms and conditions.
4.2 TCS shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(1) planned maintenance carried out during Normal Business Hours; and
(2) unscheduled maintenance performed outside Normal Business Hours, provided that TCS has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
4.3 The provision by us and the use by you of the Services is subject to our Fair Use Policy from time to time in force.
5. Customer Data
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 TCS does not store or back up any Customer Data or other personal data of the Customer and accordingly the Customer acknowledges that it is the Customer’s responsibility to back up such data and that TCS shall not be responsible for any loss, deletion, corruption, destruction, alteration or disclosure of Customer Data (including, if applicable, call recordings) however caused.
5.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5.5 The parties acknowledge that:
(1) if TCS processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Customer is the controller and TCS is the processor for the purposes of the Data Protection Legislation.
(2) the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and TCS’s other obligations under this Agreement.
5.6 Without prejudice to the generality of clause 5.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to TCS and/or the CSP for the duration and purposes of this Agreement so that TCS and/or the CSP may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf.
6. Third Party Providers
7. TCS’s Obligations in Relation to the Services
7.1 TCS undertakes that the Services will be performed substantially in accordance with the User Data Base and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to TCS’s instructions, or modification or alteration of the Services by any party other than TCS or TCS’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, TCS will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, TCS:
(1) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, User Data Base and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(2) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and User Data Base may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This agreement shall not prevent TCS from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
7.4 TCS warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
8. Customer’s Obligations in Relation to the Services
8.1 The Customer shall:
(1) provide TCS with:
(a) all necessary co-operation in relation to this agreement; and
(b) all necessary access to such information as may be required by TCS;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(2) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under our agreement with you;
(3) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, TCS may adjust any agreed timetable or delivery schedule as reasonably necessary;
(4) ensure that the Authorised Users use the Services and the User Data Base in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(5) obtain and shall maintain all necessary licences, consents, and permissions necessary for TCS, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(6) ensure that its network and systems (including without limitation its Network Provider and its Mobile Network provider) comply with the relevant specifications provided by TCS from time to time; and
(7) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to TCS’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8.2 The Customer acknowledges that it is the Customer’s responsibility to train its staff and other users of the Services and Equipment in the proper use of the Services and the Equipment and the security of the Customer’s computer system and of any data (whether Customer Data or the data of any third party) stored on the Customer’s computer system and that it is for the Customer to install and keep up to date anti-Virus and other software to protect the Customer’s computer system.
9. Changes and payment
9.1 The Customer shall pay the Licence Fees to TCS for the User Licences in accordance with this clause 9 and an Order Confirmation Form. TCS shall invoice the Customer:
(1) on the Commencement Date and thereafter every month for the Licence Fees payable in respect of the Initial Licence Term; and
(2) subject to clause 11.1, at least 30 days prior to each anniversary of the Commencement Date for the Licence Fees payable in every month in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.2 If TCS has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of TCS, we may, without liability to the Customer suspend the provision of the Services, disable the Customer’s password, account and access to all or part of the Services and TCS shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. The Customer acknowledges that if the provision of the Services is suspended for terminated by reason of the Customer’s default:
(1) any data Including call recordings (if applicable), voicemail recordings, auto attendant recordings and IVR recordings stored by or for the Customer (including reporting software or user control software) may be deleted, lost or corrupted to the extent that such data is not backed up by the Customer; and
(2) the cost of re-instating the Services shall be an additional cost payable by the Customer at the then current rate charged by TCS.
The Customer acknowledges that:
(a) any Customer Data or other data stored or backed up by the CSP will be deleted, lost or corrupted if TCS does not receive payment within 30 days of the due date for payment;
(b) whilst TCS may be able to reinstate the Services and the systems which support the Services it does not guarantee that it will be able to do so; and
(c) any reinstatement of the Services and systems may not enable the reinstatement of any Customer Data or other data which may be deleted, lost or corrupted.
9.3 TCS shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional User Licences purchased pursuant to clause 3.3, at the start of each Renewal Period upon 90 days’ prior notice to the Customer and an Order Confirmation Form shall be deemed to have been amended accordingly.
10. Poprietary rights
10.1 The Customer acknowledges and agrees that TCS and/or its licensors own all intellectual property rights in the Services and the User Data Base. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the User Data Base.
10.2 TCS confirms that it has all the rights in relation to the Services and the User Data Base that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11. Term and Cancellation
11.1 Our agreement with you for the provision of the Services shall, unless otherwise terminated as provided in this clause 11, commence on the Commencement Date and shall continue for the Initial Licence Term and, thereafter, our agreement with you shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(1) either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Licence Term or any Renewal Period, in which case our agreement with you for the provision of the Services shall terminate upon the expiry of the applicable Initial Licence Term or Renewal Period; or
(2) otherwise terminated in accordance with these terms and conditions;
and the Initial Licence Term together with any subsequent Renewal Periods shall constitute the Licence Term.
11.2 If you cancel or seek to terminate the agreement for the provision of the Services before the end of the Initial Term you will pay us:
(1) the balance Licence Fees then due then due less (if you pay the balance due to us no later than 14 days after the date of our invoice in respect of such amount) a discount of 2.5%;
(2) an amount equal to any monies due to TCS for any services provided by TCS in addition to the Services and any amount charged to TCS by any third party as a result of the termination of the Services.
(3) if applicable, the amount of any costs we have paid or have to pay to any third party to release us or you from any obligation incurred to that third party to enable us to provide the Services to you.
PART 3 – SUPPLY OF GOODS
12.1 You must decide before ordering if the specified goods are suitable for your needs.
12.2 We will order the goods specified in the Order Confirmation Form.
12.2 All goods supplied to the Customer will be with the benefit of the manufacturer’s warranty and are subject to their own specifications.
12.3 Goods are subject to availability and may vary from those previously quoted.
12.4 Risk in the goods shall pass to the Customer on delivery to the Site or other premises specified in an Order Confirmation Form.
13. Delivery & Installation
13.1 TCS accepts responsibility for the installation, if instructed, and operation of the equipment until the end of the maintenance period (if any) stated by the manufacturer. All Packages include the cost of the maintenance of the Equipment until the end of the Initial Term on the terms set out in Part 4 of these terms and conditions.
13.2 TCS does not accept responsibility or any increase in costs due to any Network Provider failing to meet their supply obligations or estimated supply timescales. If TCS incurs any additional costs, the right is reserved to pass these on to you.
14. Property in the Goods
14.1 The goods shall remain the sole property of TCS and title to the goods shall not pass to the Customer until the Customer has paid all monies due to TCS and the Customer acknowledges that until such payment is made in full it is in possession of the goods only as a fiduciary for TCS.
14.2 Until title to any goods passes to the Customer, the Customer authorises TCS to enter the Site or any other premises where the goods are located to enable TCS to recover the goods.
14.3 The Customer will not remove any serial numbers, badges or other means of identifying the goods.
15. Prices & Payment
15.1 Unless otherwise agreed in writing by a Director of TCS or unless clause 15.2 shall apply, the Customer will pay a deposit of 50% (plus VAT) of the total purchase price with order, and the remaining balance immediately on receipt of an invoice from TCS.
15.2 If the goods are to be acquired via a TCS arranged lease/rental agreement, the terms and conditions of the lease/rental agreement shall apply in place of clause 15.1. If the leasing (or alternate funding) arrangements are not arranged by TCS then 15.1 shall still apply.
16.1 If the goods do not arrive or are incomplete or damaged when you open them you must tell our Services Department within 5 days of receipt or expected delivery.
16.2 We will accept returns of faulty goods within 7 days of delivery. You will need to obtain an RA number (Returns Authorisation) from our Services department. Goods must be returned in their original packaging.
16.3 If you change your mind we may take goods back at our discretion if they are unopened, unused and in perfect condition.
16.4 We do not accept returns of any software.
PART 4– GENERAL
17.1 If any payment is not made in cleared funds by the due date for payment then in addition to any other rights and remedies available to it (including without limitation the right to suspend the all or any of the Services in accordance with clause 19), TCS reserves the right to require that all future payments are made by monthly variable direct debits and if you refuse to set up a direct debit arrangement in these circumstances TCS can terminate the Agreement.
17.2 Payments are to be made by you without set-off or deduction and if you fail to pay any sum due, we shall be entitled to charge interest on the amount due at the rate of four percent above the base lending rate from time to time of NatWest such interest to be calculated from the due date for payment until receipt by us of cleared funds.
17.3 Cancellation of a direct debit does not constitute notice of cancellation on termination of your agreement with us.
17.4 TCS will charge ten pounds per month administration fee for payments tendered by means other than direct debit. TCS reserves the right to increase this amount on one month’s notice.
17.5 TCS reserves the right to perform a credit check on you with no prior notice, and to pass your credit history with TCS on to any credit agency and/or to the Court.
17.6 TCS reserves the right to request from you at any time a deposit payable on demand if in our view there is any deterioration in your financial standing or if unusual usage or call charges are incurred.
17.7 TCS may, at its sole discretion and at any time, impose a credit limit on your account. Any credit limit imposed can be amended without prior notice. If you exceed any such credit limit, TCS may demand immediate payment of the charges and/or suspend the Services; and you will still be responsible for all charges incurred including those exceeding the credit limit.
18. Your Responsibilities
18.1 You will only use the Services in accordance with this agreement, any recommendations or instructions given by TCS from time to time and any laws, regulations and licenses which apply to the use by you of the Services.
18.2 You will not allow an alternative supplier to override or bypass the Services either through the installation of equipment or by means of a third party service provider.
18.3 You will not use the Services to transmit any material which may be abusive, offensive, obscene, indecent, menacing, defamatory or which might cause annoyance, inconvenience or needless anxiety to anyone or in order to commit a fraud or other criminal offence.
18.4 You will not transfer or agree to transfer any number provided to you for use with the Services, nor attempt to do so without prior written notification to TCS. In order to verify any such transfer notified to TCS and to prevent any unlawful use of such number TCS may request such additional information or authorities as TCS considers reasonable in the circumstances before effecting any such transfer.
18.5 You will terminate your existing contract for equivalent services with your current provider and irrevocably authorise and request that current provider to provide TCS with such information as TCS reasonably requires, to transfer any number to the service provided by TCS and to allow access to the Site at which the Services are to be provided for TCS, BT or any other telecommunications supplier to TCS and you acknowledge that TCS cannot process the provision of the Services until such information is provided and such access is allowed.
18.6 You will be responsible for providing at your own cost the site conditions TCS advises you will be required for provision of the Services including electricity supply connection points and computer terminals. TCS will not be responsible for reinstating the Site after the installation work has been carried out, other than where damage has been caused by TCS or by those for whom TCS is responsible.
18.7 You will ensure that your equipment meets all legal and regulatory requirements and is approved for connection to the network. You must disconnect any non-compliant equipment immediately or allow TCS to do so at your cost.
18.8 You are responsible for removing any equipment not required for or incompatible with the Services and for returning it to its owner or for its lawful disposal.
18.9 You consent to BT or other relevant Network Provider disclosing to TCS any information relating to the transfer or removal of BT’s (or other relevant Network Providers’) products and services that exist on the line as at the time of its transfer to TCS.
18.10 You shall be liable for any costs relating to telephone calls, malicious or otherwise made, through the telephone system either from within your premises or via an external source getting access and dialling out. Any such calls are not included in the Package Price and shall be payable by you. Without prejudice to the generality of the foregoing, it is your responsibility to ensure that you maintain and regularly review the security of your communications systems and that you insure against the risk of you being responsible for any call charges that are generated as a result of your systems being hacked or the subject of any virus, malware or other third party interference.
18.11 You shall be liable for any costs relating to telephone calls whether they be made directly over the telephone network or by using an alternative carrier. If any fault or condition arises where telephone calls are made not using the Customer’s first choice of carrier, the Customer shall still be liable for the payment of those calls.
18.12 You will ensure that the Site is safe and secure and will indemnify TCS for the consequences of any death or personal injury to any employee or sub-contractor of TCS working at the Site or for the loss of or damage to any equipment used or left or stored on the Site by TCS or its employees or sub-contractors.
19. Suspension of Service
TCS may suspend the Service in whole or in part (without being liable to compensate you):
(1) in the event of an emergency;
(2) to comply with a request from a government or other competent authority;
(3) to protect or provide service to rescue or other essential services or otherwise;
(4) to maintain the quality of TCS’s services;
(5) if TCS believes that you may fail to pay any amount due to TCS (whether or not we have issued you with an invoice);
(6) an event occurs which is a Relevant Event described in clause 22.1;
(7) if you break any part of this agreement;
(8) if you are in breach of our Fair Use Policy.
20.1 Our agreement with you may be ended immediately by written notice:
(1) by you if TCS breaks any term of this Agreement, which after written notice has not been rectified within fourteen days;
(2) by TCS if you stop trading or becomes insolvent or are wound up;
(3) by TCS if you break any term of this Agreement;
(3) by TCS if you are in breach of our Fair Use Policy;
(4) by TCS if you are a company and control of the company is changed within the meaning of sections 450, 451 or 1124 Corporation Tax Act 2010.
20.2 On termination of this Agreement for whatever reason, you will:
(1) immediately pay the balance of the Licence Fee (less, if you pay immediately) a discount of 2.5%) and any other outstanding invoices.
(2) be responsible for any required engineering reprogramming costs for you to use an alternative supplier.
20.3 On termination of this Agreement for any reason all licences granted under this Agreement shall immediately terminate.
20.4 If this Agreement is terminated your licence to use any number may be transferred in accordance with clause 18.4. If no request for transfer of any such number shall be received by TCS 30 days or more after the date of termination TCS shall be entitled to the exclusive use of such number.
20.5 This Agreement will continue in full force and effect to the extent that any of its terms remain to be observed or performed.
21.1 TCS will not:
(1) be liable in contract or tort or otherwise for any harm to your business, loss of revenues, loss of anticipated savings, lost profits or other indirect consequential or special losses nor for any charges incurred by you with any third party including without limitation another call carrier;
(2) be liable to you or to any third party for any losses suffered by that third party;
(3) be liable for any failure, defect or other consequence of any equipment forming part of your communications system not being secure by reason of being hacked or the subject of any Virus, malware or other third party interference given that the security of your communications system is not part of the Services;
(4) be liable to you for any failure in the provision of Services by the CSP or for the failure of any other part of the Infrastructure;
(5) be liable to you for any failure on your part to comply with your obligations in our agreement with you or resulting from any error or omission of you;
(6) be liable to you for any misrepresentation other than a false representation knowingly made as such.
21.2. Without prejudice to clause 21.1:
(1) our liability in contract or tort arising from any default by us under or in connection with the Services shall be limited to a refund of six monthly instalments of the Licence Fees.
(2) if any Goods are found to be defective in the first 12 months following the Commencement Date our total liability to the Customer in respect of any Goods supplied in accordance with Part 3 of these terms and conditions shall not exceed the price of those Goods.
(3) our total liability to the Customer in respect of any service provided by TCS other than the Services shall not exceed one monthly instalment of the Licence Fee.
21.3 TCS does not seek to limit its liability for death or personal injury resulting from the negligence of TCS, its employees or others for whom it is responsible.
21.4 TCS accepts no liability for claims relating to your ability to use or continue to use a particular telephone number.
21.5 TCS accepts no liability for any charges incurred by you if your traffic is diverted to another Network Provider other than when this is due to a negligent act or omission on the part of TCS.
21.6 TCS shall not be liable for the consequences of any failure of any of the Infrastructure or for any damage caused by electrical surges through the power supply or power surges caused by external influence such as that caused by lightning strike or similar.
21.7 The Customer acknowledges that the Licence Fee reflects the limitations contained in this clause 21. The Customer shall effect insurance cover in respect of all risks relating to the Services which are not covered by our agreement with you or for the liabilities excluded under this clause 21 or if such risks cannot be insured by the Customer the Customer shall pay TCS for any additional insurance cover it may obtain at the request of the Customer.
21.8 If any of the provisions of clause 21 are not valid or enforceable those provisions shall be deemed to be excluded to the intent that the remaining provisions shall be valid and enforceable.
22. Force Majeure
22.1 Neither TCS nor you will have to compensate the other for any detrimental event beyond the other’s reasonable control including (without limitation) any act of God, reduction or failure of power supply, other telecommunications operators and suppliers or their equipment including access lines, act or omission of national or local government authority, war, act of terrorism, military operation, riot or delay or employee dispute (a “Relevant Event”).
22.2 If a Relevant Event shall prevent the provision by us of the Services for more than 3 months then we may terminate this Agreement.
23.1 Any notice required to be served under this Agreement must be in writing. The address for service on TCS (subject to any change notified by TCS to you) is the address stated on the Order Confirmation Form. Your address for service is the address set out on the Order Confirmation Form or (if different) on the most recent invoice we have sent to you or such address as has been notified to TCS in accordance with this clause.
23.2 A notice will be treated as served as follows:-
(1) in the case of delivery by hand, on the day of delivery except that where that day is not a Business Day, or the delivery is made after four pm, then it will be treated as served on the next Business Day;
(2) in the case of delivery by registered post or recorded delivery, on the date of delivery as proved by the proof of delivery advice issued by Royal Mail (or such other postal service providing a registered or recorded delivery service in place of or in addition to Royal Mail);
(3) in the case of a “Fair Use Notice” served by us in accordance with our Fair Use Policy, by email to you at your principal contact’s email address notified from time to time by you to us.
24.1 You may not transfer this agreement or any rights under it without our prior written consent.
24.2 TCS may transfer all or any of its rights under our agreement with you.
24.3 TCS may engage such sub-contractors or agent to provide the Services as it shall determine.
24.4 If any provision or condition of our agreement with you shall be invalid or unenforceable, the remaining terms shall continue to apply.
24.5 Any variations (other than changes made in accordance with these terms and conditions) shall not be effective unless in writing and signed by you and by a director of TCS
24.6 If there is any inconsistency between these terms and conditions and the Order Confirmation Form, the Order Confirmation Form shall take precedence.
24.7 Any failure by TCS to enforce any right shall not be deemed a waiver of any such right.
24.8 Unless agreed otherwise by us the Services will only be provided during our normal business hours which are Monday to Friday (excluding Bank Holidays) 09:00 to 17:00.
24.9 This Agreement is governed by English law and the parties agree to submit to the exclusive jurisdiction of the Courts in England.
24.10.1 This Agreement 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 and there are no agreements or understandings between them other than those in this Agreement and in the Order Confirmation Form which shall be deemed to be part of this Agreement. For the avoidance of doubt it is agreed that any proposal made by TCS does not form part of any Agreement.
24.10.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
24.10.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
24.10.4 Nothing in this clause shall limit or exclude any liability for fraud.
24.12 This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
24.13 Each party shall keep information of or about the other party disclosed to it by the other party confidential and shall not disclose or use such information unless that information:
(1) is or becomes publicly known other than through any act or omission of the receiving party;
(2) was in the other party’s lawful possession before any disclosure;
(3) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(4) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(5) that information is required by law to be disclosed.
24.14 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute TCS’s Confidential Information.
24.15 TCS acknowledges that the Customer Data is the Confidential Information of the Customer.
24.16 We may vary the terms of our agreement with you by not less than 30 days’ written notice. If you are not willing to agree any such variation you may during such period of 30 days give not less than 30 days’ notice to us to terminate this agreement. If you do not give us notice to terminate our agreement with you such variation notified by us to you shall be deemed to be agreed by you and incorporated in these terms and conditions.