Terms
and Conditions
TERMS
AND CONDITIONS FOR THE PROVISION OF SERVICE
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms, unless the context otherwise requires,
the following words shall have the following meanings:
“Agreement” the agreement made on the basis
of an Order Form signed by the Customer and accepted by
IVR incorporating these Terms; “Charges” the
charges for the Service as set out in the Order Form;
“Commission” the payments due from IVR to
the Customer set out in and calculated in accordance with
the Order Form; “Customer” the customer named
on the Order Form; “Effective Date” the date
of commencement of provision of the Service set out on
the Order Form; “Intellectual Property Rights”
any patent, copyright, assignment, trade mark, database
right, know-how, or other industrial or intellectual property
subsisting in any country (including but not limited to
the United Kingdom) in all cases whether or not registered
or registerable in any country, for the full term of such
rights and including registrations and applications for
registration of any of these and rights to apply for the
same and all rights and forms of protection of a similar
nature of having equivalent or similar effect to any of
these anywhere in the world; “IVR” IV Response
Limited (company number 4318927) whose registered office
is 102 Cavell Street, London E1 2JA; “IVR’s
Website” any of IVR’s Internet websites and
which the Customer is authorised to access as part of
the Service;
“Minimum Period of Service” Shall be 6 months
from the date shown on the Order Form “Order Form”
the order form incorporating these Terms stating the Customer’s
requirement for Service; “Passwords” any codes
or passwords notified by IVR to the Customer and for use
by the Customer to access the Service; “Planned
Outage Time” the length of time (in minutes) when
a particular service is not available for use by the Customer
in order for IVR to perform certain tasks including, but
not limited to, routine maintenance, testing, changing
configurations, software upgrades, updating facilities;
“Service” the service to be provided to the
Customer by IVR set out on the Order Form; “Service
Target” the performance levels specified on the
Order Form and excluding any Planned Outage Time; “Working
Day” Monday to Friday excluding Public and Bank
Holidays in the UK; and “Working Hours” the
hours specified in the Order Form or, in the absence of
such specification, 0900 - 1730 London time in a Working
Day.
1.2
References to clauses are to clauses of these Terms; headings
are for convenience only and shall be ignored in interpreting
the Agreement; the singular includes the plural and vice
versa, and use of any gender includes them all; and any
reference to a statute, statutory provision or subordinate
legislation (“legislation”) shall (except
where the context otherwise requires) be construed as
referring to such legislation as amended and in force
from time to time and to any legislation which re-enacts
or consolidates (with or without modification) any such
legislation.
1.3
These Terms when incorporated into an Order Form are the
only basis on which IVR will contract with Customers and
operate to the exclusion of all other terms whether brought
to IVR’s attention or not.
1.4
Without prejudice to the making of the Agreement or clause
1.2, acceptance of provision of the Service or payment
of Commission by the Customer constitutes acceptance of
these Terms.
2.
PROVISION OF THE SERVICE
2.1
In consideration of the Charges IVR agrees to provide
the Customer with the Service in accordance with the provisions
of the Agreement.
2.2
For operational reasons IVR may vary the technical specification
of and make operational changes to the Service and the
Passwords.
2.3
IVR will use its reasonable endeavours to provide the
Service during Working Hours and shall use its reasonable
endeavours to meet the Service Target.
2.4
IVR cannot guarantee continuous uninterrupted provision
of the Service. IVR reserves the right to interrupt the
Service to carry out routine maintenance, repairs, reconfigurations
or upgrades or for other circumstances beyond its reasonable
control. It is technically impracticable to provide a
fault free Service and IVR does not undertake to do so
and shall not be liable for its failure to provide continuous
Service or any failure to meet the Service Target.
2.5
IVR reserves the right to control direct and establish
technical procedures for the use of the Service and the
Customer agrees to follow the reasonable instructions
and procedures of IVR with respect to the same.
2.6
The Service are provided subject to the condition that
there will be no abuse or fraudulent use thereof. Abuse
and fraudulent use of Service shall include (without limitation):
2.6.1 obtaining, or attempting to obtain, the Service
by rearranging, tampering with, or making connection with
any facilities of IVR, or by any trick, scheme, false
representation or false credit device, or by or through
any other fraudulent means or devices whatsoever, with
intent to avoid payment, in whole or in part, of the regular
charges for the Service;
2.6.2
attempting to, or actually obtaining, accessing, altering,
or destroying the data files, programs, procedures and/or
information of IVR; or
2.6.3
assisting another to perform the acts prohibited in sub-clause
2.6.1 or sub-clause 2.6.2 above.
2.7
The Customer acknowledges that neither the Internet nor
the telecommunications network used in the provision of
the Service is secure and accordingly IVR cannot guarantee
the privacy of any of the Customer’s information.
3.
COMMENCEMENT AND DURATION
The Agreement will commence on the Effective Date and
will, subject to its terms, continue for the Minimum Period
of Service, after which it will continue unless terminated
in accordance with clause 18.
4. IVR’S GENERAL POWERS
IVR shall be entitled, upon the giving of as much notice
to the Customer as reasonably possible, to:
4.1
change any code or phone number allocated to the Customer
if required to do so by a licensed telecommunications
provider;
4.2
change or vary the technical specification of the Service
if a licensed telecommunications provider or IVR needs
to do this for operational reasons;
4.3 interrupt the Service if a licensed telecommunications
provider or IVR needs to do this for operational reasons
or because of an emergency; or
4.4 give the Customer instructions which a licensed telecommunications
provider or IVR believes are necessary for reasons of
health, safety, or the quality of Service to the Customer
or to any other customer.
5. CUSTOMER’S UNDERTAKINGS
The Customer undertakes for itself and for any other party
using its access to the Service:
5.1
not to create and/or introduce into the Service and in
particular IVR’s Website any virus, worm, trojan
horse, cancelbot or other destructive or contaminating
program or advise or instruct any other party how to do
the same; and
5.2
to maintain confidentiality of its login names, passwords
and other confidential information relating to the Customer’s
access to the Service.
6.
INTELLECTUAL PROPERTY RIGHTS
6.1
All Intellectual Property Rights arising in the provision
of the Service shall vest in IVR.
6.2
IVR warrants that it is entitled to and to grant rights
of use in the Intellectual Property Rights subsisting
in the Service (“Service IPR”) as beneficial
owner or licensee (as the case may be) and the Customer
acknowledges that all title to the Service IPR is and
shall remain with IVR or IVR’s licensor (as the
case may be).
6.3
IVR grants the Customer a non-exclusive, non-transferable
licence to use the Service IPR for the purpose of using
the Service and for no other purpose. Any Service IPR
supplied to the Customer must not be copied, disclosed
or used (except for the purpose for which they are supplied)
without IVR’s prior written consent. Such license
shall expire upon termination or expiry of the Agreement
howsoever occurring.
6.4
The Customer must keep the Service IPR in strict confidence.
Any disclosure of it by the Customer is to be made in
confidence and only to the extent strictly necessary for
the proper use of the Service.
7.
CONFIDENTIALITY
7.1
Subject to clauses 7.2, 7.3 and 7.4 below neither party
shall without the prior consent of the other party, disclose
to any third party any confidential information of the
other party disclosed in relation to the Agreement, and
which is confidential by its nature.
7.2
These obligations will not apply to information which
is already in or comes into the public domain other than
through a breach of the Agreement; is already known to
the party concerned at the date of its receipt or is independently
developed, generated or discovered by the party concerned
without reference to the confidential information disclosed
under this Contract; is lawfully obtained from a third
party; or is legally required to be disclosed.
7.3
The obligations in this clause 7 will survive the termination
or expiry of the Agreement.
7.4
Nothing in this clause 7 will prevent the use or disclosure
by IVR of any information as may be necessary for the
purposes of providing the Service.
8.
MISUSE
8.1 The Customer warrants that the Service must not be
used:
8.1.1
to send a message or communication which is offensive,
indecent, menacing, a nuisance or a hoax;
8.1.2
fraudulently or in connection with the carrying on of
a criminal offence; or
8.1.3
in breach of instructions IVR has given including in accordance
with clause 4.4. and in this clause 8.1 any use or access
of the Service utilising any of the Passwords shall be
deemed to have been authorised by the Customer.
8.2
If IVR suspends Service for contravention of clause 8.1
it can refuse to restore Service until it receives an
acceptable assurance from the Customer that there will
be no further contravention.
9.
INDEMNITY
9.1 The Customer undertakes fully and effectively to indemnify
and keep indemnified at all times IVR against all actions,
proceedings, costs, claims, demands, liabilities and expenses
whatsoever (including legal and other fees and disbursements)
sustained, incurred or paid by IVR directly or indirectly
in respect of:
9.1.1
access to and/or use of the Service by the Customer or
by any person authorised by the Customer;
9.1.2
any information, data or material produced, transmitted
or downloaded by the Customer or by any person authorised
by the Customer; and
9.1.3
any breach by the Customer or by any person authorised
by the Customer of any of the provisions of the Agreement
or of any law, code or regulation relating thereto, to
the Service or the Customer.
10.
CHARGES AND PAYMENT
10.1
The Customer shall pay the Charges from the Effective
Date on a monthly basis and within 14 days of the date
of IVR’s invoice in respect of Charges (the last
day of such period “the Due Date”).
10.2
The Customer will pay or reimburse IVR for any and all
sales and use taxes, duties or levies imposed by any government
authority, or government agency (other than the property
taxes and taxes levied on IVR’s net income) in connection
with the Service.
10.3
The Customer agrees to pay all charges for maintenance
and other Service activities, and to pay for loss or damage
to the Service or any of IVR’s equipment or software
caused by:
10.3.1 use of the Service for purposes other than that
for which they are specified;
10.3.2
tampering with or attempting to adjust the Service, including
(without limitation) IVR’s Website; or
10.3.3
Customer negligence of any kind.
10.4
The Customer agrees that it is solely responsible for
all use of the Service accessed through the Passwords
with or without its consent and will pay for and be responsible
for such use.
10.5
In consideration of the obligations undertaken by the
Customer hereunder IVR shall, on a monthly basis and in
accordance with this clause 10, pay Commission to the
Customer.
10.6
The parties agree that Commission is payable in respect
of the Customer’s procuring use of the Service by
third parties to the commercial benefit of IVR and the
Customer, that the Customer has no authority to negotiate
sales of goods on behalf of IVR, and that accordingly,
the provisions of the Commercial Agents (Council Directive)
Regulations 1993 and Council Directive 86/653/EEC on the
coordination of the laws of Member States relating to
self-employed commercial agents do not apply to the Customer.
10.7
The Customer hereby confirms its consent to self-billing.
10.8
Subject to the Customer being duly registered for VAT
and the appropriate VAT Commissioner having approved self-billing,
the parties agree that for any payments due from IVR to
the Customer under the Agreement, IVR may issue to itself
a VAT invoice, on the Customer’s behalf and using
the Customer’s VAT registration number. The Customer
further confirms that where such self-billing occurs the
Customer shall not issue any invoice (whether relating
to VAT or otherwise) in respect of any amounts due from
IVR to the Customer under the Agreement
10.9 IVR shall within 35 days after the end of each month
send to theCustomer a copy of the Customer’s VAT
invoice issued by IVR in accordance with clause 10.8 showing
the Commission which is due to be paid to the Customer
for the said month together with a statement of account
of the Customer with IVR and IVR’s invoice in respect
of Charges. Where such statement shows an amount owing
10.9.1
from IVR to the Customer, IVR shall pay such amount to
the Customer forthwith; or
10.9.2
from the Customer to IVR, the Customer shall pay such
amount to IVR by the relevant Due Date.
10.10 IVR shall be entitled to charge interest on any
payments which remain unpaid on the Due Date which shall
accrue on a daily basis at 3% above the base rate of Barclays
Bank plc.
10.11
Upon termination of the Agreement by IVR serving notice
on the Customer under clause 18.1 the Customer shall be
entitled to Commission in accordance with clauses 10.5
and 10.9 for 90 days following such termination. For the
avoidance of doubt after that period the Customer shall
not be entitle to any further commission payments from
IVR.
10.12
Where IVR does not receive payment in respect of the Service
or is obliged to make a refund, then IVR may deduct Commission
already paid from subsequent Commission payments to the
Customer, or on termination, require repayment thereof
by the Customer, save such payments were made as a result
of IVR’s supply of defective Service.
10.13
All sums payable under the Agreement are exclusive of
any VAT or other applicable sales tax which shall where
appropriate be added to the sum in question.
10.14
Unless otherwise agreed the currency of payment of Commission
shall be the same currency as the currency of payment
by the Service provider to IVR and payments by IVR to
the Customer under the Agreement shall subject to the
granting of any necessary exchange control or other governmental
permission be made by cheque sent to the Customer’s
address as stated in the Order Form or as notified by
the Customer to IVR from time to time.
10.15
If any dispute arises as to the amount of Commission payable
by IVR to the Customer, the same shall be referred to
IVR’s auditors for settlement and their certificate
shall be final and binding on both parties.
10.16
IVR shall be entitled to set off any sums owed to it by
the Customer against any payment due to the Customer or
any third party under the Agreement.
11.
IVR’S LIABILITY
11.1
IVR in performing its obligations under the Agreement
shall exercise the reasonable skill and care of a competent
telecommunications service provider.
11.2
The Customer shall accept the Service “as is”
and “as available” without any warranty of
any kind either express or implied, including but not
limited to warranties of merchantability, fitness for
purpose, title or non-infringement.
11.3
Subject to clause 11.5 the parties agree that IVR shall
not be liable under or in relation to the Agreement or
its subject matter (whether such liability arises due
to negligence, breach of contract, misrepresentation or
for any other reason) for any:
11.3.1 loss of profits, sales or turnover; loss of or
damage to reputation; loss of contracts; loss of customers;
loss of, or loss of use of, any software or data; loss
of use of any computer or other equipment or plant; wasted
management or other staff time; losses or liabilities
under or in relation to any other contract; or
11.3.2
indirect, consequential or special loss or damage and
for the purposes of this clause the term “loss”
includes a partial loss or reduction in value as well
as a complete or total loss.
11.4
Subject to clause 11.5 in no event shall IVR’s liability
to the Customer in contract, tort (including negligence)
or otherwise under or in connection with the Agreement
in aggregate for all events in any 12 month period exceed
the amount of Charges payable in the same period.
11.5
Nothing in the Agreement shall operate to limit or exclude
the liability of either party in respect of fraud; the
death of, or personal injury to, any person caused by
negligence; under section 12 of the Sale of Goods Act
1979; under section 2 of the Supply of Goods and Services
Act 1982; under Part 1 of the Consumer Protection Act
1987; or any breach of clause 7.2.
12.
FORCE MAJEURE
IVR will not be responsible for any delay in, or failure
of, the Service due to any occurrence commonly known as
force majeure, including but not limited to war, riots,
embargoes, strikes, or other concerted acts of workmen
(whether of IVR or others), casualties or accidents, or
any other causes, circumstances, or contingencies, beyond
IVR’s control, which prevent or hinder the performance
of IVR of any of its obligations hereunder.
13. CHANGE CONTROL
13.1
Either party may without invalidating the Agreement request
a material addition to or omission from or other change
in the Service including the period or the Working Hours
in which the Service are to be provided by issuing to
the other party a Service amendment form (“a Form”).
13.2
On receipt by IVR of a Form from the Customer IVR shall
provide the Customer within 10 Working Days, details of
the:-
13.2.1 increase or reduction in the Charges (if any) which
would occur as a result of the change set out in the Form;
and
13.2.2
if such change cannot reasonably be implemented immediately,
the time in which it reasonably requires to implement
such change.
13.3
IVR shall provide to the Customer details in respect of
the matters set out in Clauses 13.2.1 and 13.2.2 at the
same time as it issues to the Customer any Form.
13.4
If the Customer wishes to proceed with a proposed change
it shall arrange for the Form to be signed by an authorised
representative of each party with the details provided
by IVR in accordance with Clauses 13.2.1 and 13.2.2. IVR
shall then implement the proposed change in accordance
with the details provided by it under Clauses
13.2.1 and 13.2.2.
14.
MODIFICATION OF FEATURES AND FACILITIES
14.1
IVR can terminate any feature or facility provided under
the Agreement as part of the Service on one month’s
prior written notice, to be given not earlier than 6 months
from the signature of the Agreement. In the event of termination
of any feature or facility of the Service, IVR shall:
14.1.1
make an appropriate adjustment to the Charges;
14.1.2
use its reasonable endeavours to offer, if so requested,
by the Customer and on reasonable terms, a feature or
facility approximately equivalent to that which has ceased
to be provided.
15.
PERSONNEL
The
Customer shall not, during the term of the Agreement and
for the period of twelve months after its termination
or expiration, employ or engage on similar work or offer
such employment or engagement to any of IVR’s employees
who are involved in performing the Service (save for such
employees who have responded in good faith to an open
advertisement for a genuine vacancy), without IVR’s
prior written agreement. If the Customer breaches the
provisions of this clause then liquidated damages equivalent
to the charge for one hundred days’ work by that
person at the applicable IVR hourly rate will immediately
become payable by the Customer to IVR.
16. ASSIGNMENT
Neither party may assign, transfer or charge any rights
or obligations under the Agreement, without the prior
written consent of the other, save that IVR may assign
its rights under the Agreement to a subsidiary company,
its holding company, or any subsidiary company of its
holding company (as such terms are defined in the Companies
Act 1985) without the Customer’s written consent.
17. TERMINATION FOR DEFAULT
17.1 Either party shall be entitled to terminate the Agreement,
without further notice, if the other party commits a material
breach of the Agreement, and
17.1.1
if the breach is capable of remedy, fails to remedy the
breach within a reasonable time of written notice from
the other to do so; or
17.1.2
if it is not possible to remedy the breach.
17.2
Either party shall be entitled to terminate the Agreement
if any of the following events occurs to the other: the
presentation of a petition for its winding up or for the
appointment of an administrator of its undertaking; or
the passing of a resolution to go into or its entry into
liquidation (other than for the purposes of and followed
by a bona fide reconstruction or amalgamation of a solvent
company); or the appointment of an administrator, receiver,
administrative receiver or manager over its assets or
undertaking or a substantial part thereof; or the convention
of a meeting of or the making or a proposal to make any
arrangement or composition with its creditors; or its
being unable to pay its debts within the meaning of section
123 of the Insolvency Act 1986; or its ceasing to carry
on its business or substantially the whole of its business;
or the happening of any equivalent event under the laws
of any relevant jurisdiction.
17.3
If IVR delays in acting upon a breach of the Agreement
by the Customer, that delay will not be regarded as a
waiver of that breach. If IVR waives a breach of the Agreement
by the Customer, that waiver is limited to that particular
breach. If the Customer delays in acting upon a breach
for 28 days, such delay shall be regarded as a waiver
of that breach.
17.4
The Customer shall continue to be liable to pay all Charges
which are due for the Service during any period in which
the Customer does not comply with the Agreement.
18.
TERMINATION BY NOTICE
18.1
Either party may terminate the Agreement on not less than
3 month’s written notice expiring at any time after
the Minimum Period of Service.
18.2
Any termination under clauses 17 or 18 shall not affect
any accrued rights or liabilities of either party nor
shall it affect the enforceability of any provision of
the Agreement which is intended to continue in force after
such termination.
19.
DISPUTE RESOLUTION PROCEDURE
If there is any dispute between IVR and the Customer arising
out of the Agreement, IVR and the Customer will use their
reasonable endeavours to settle the dispute in accordance
with the following procedures:
19.1
Any dispute which has not been settled by the Customer’s
contract manager and the IVR account manager within 30
days of the matter being raised, shall be referred to
the Chief Executives of the parties by notice in writing
of either party to the other party.
19.2
If the dispute is not resolved within 30 days of referral
to the Chief Executives either party may refer the dispute
to IVR’s auditors for mediation and whose decision
shall be binding.
19.3
Nothing in this clause 19 shall limit either party’s
rights to bring legal proceedings against the other party.
20.
REGULATORY MATTERS
20.1
IVR reserves the right to modify the Service if required
by law or regulation and IVR will notify the Customer
as soon as possible of any such modification.
20.2
The delay or failure by IVR to perform any of its obligations
under the Agreement which is caused or materially contributed
to by a restriction of a legal or regulatory nature and
which affects, wholly or partly, the provision of any
Service, or a refusal or delay by a third party telecommunications
service provider to supply telecommunications services
to IVR, shall not constitute a breach of the Agreement.
21.
ENTIRE AGREEMENT
21.1
The Order Form and these Terms are the whole of the Agreement
and the only terms agreed between the parties relating
to the subject matter of the Order Form and supersede
all previous written or oral agreements relating to it.
21.2
The parties acknowledge and agree that:
21.2.1 they have not been induced to enter into the Agreement
by any representation, warranty or other assurance not
expressly incorporated into it;
21.2.2
in connection with the Agreement, and except in the case
of fraud, their only rights and remedies in relation to
any representation, warranty or other assurance shall
be for breach of the terms of the Agreement and that all
other rights and remedies are excluded; and
21.2.3
no addition or modification to the Agreement shall be
binding on the parties unless made in accordance by mutual
agreement or otherwise in accordance with the Agreement.
22.
NOTICES
Any notice or communication which is given under the Agreement
shall be given in writing and shall be regarded as properly
served when either delivered personally or sent by pre-paid
first class post to the address for each party first before
written or such address as shall be subsequently notified
in writing to the other party and shall be deemed to have
arrived at the time of delivery if delivered by hand or
by fax, and 48 hours from the date of posting if by post,
provided that if deemed receipt is not on a Working Day
or delivery takes place after 1700 on a Working Day, then
the notice shall be deemed to be served on the following
Working Day.
23. RIGHTS OF THIRD PARTIES
A person who is not a party to the Agreement has no rights
under the Contracts (Rights of Third Parties) Act 1999
to enforce any term of the Agreement but this does not
affect any right or remedy of a third party which exists
or is available apart from that Act.
24. LAW
The Agreement shall to be governed by the law of England
and Wales and the parties hereby submit to the exclusive
jurisdiction of the courts of England and Wales
