Terms & Conditions

Definitions
"Agreement" means these Terms and Conditions, the Schedules and the Order Forms

"Business Days" means days when banks are open for business in the City of London.

"Cancellation Fee" means the fee charged by Easycall to the Client for termination of this Agreement or as part of this Agreement before the expiration of the Minimum Period. The Cancellation Fee shall be equivalent to the fees that would be chargeable for three (3) calendar months or the as yet unexpired portion of the Minimum Period whichever is the greater.

"Client Premises Equipment" means the hardware and peripheral systems used by the Client to access the Services and which are based at the Client's premises.

"Client Server Equipment" means server equipment provided by the Client to Easycall which has not been sourced or procured by Easycall.

"Confidential Information" means all confidential information including all information disclosed by one party to the other provided that such item of information would appear to a reasonable person to be confidential or bears upon it a statement that it is confidential or proprietary.

"Easycall Equipment" means all equipment owned and operated or leased and operated by Easycall.

"Force Majeure" means as in Clause 13.7 of this Agreement.

"Intellectual Property Rights" means patents, registered and unregistered designs, copyright and all other intellectual property protections wherever in the world enforceable.

"Legacy Applications" mean software applications owned and/or operated by the Client prior to the provision of the Services.

"Minimum Period" means three (3) years or the term of the Order Form if different.

"One-off Fee" means the fee payable by the Client to Easycall for the provision of hardware and/or installation of the services and/or hardware as set out in the Order Form

"Order Form" means any Order/Quotation Forms attached to these Terms and Conditions or added and incorporated by agreement between the parties from time to time.

"Recurring Fee" means the fee payable either monthly or quarterly in advance by the Client to Easycall.

"Services" means those services set out in the Order Form.

"Telecom Equipment" means any and all telecommunications equipment, other than equipment owned and maintained by Easycall, through which the Services are provided.

"Usage Fees" means charges for Services as set out in the Order Form.
Services to be supplied:
Subject to the terms and conditions of this Agreement, including but not limited to payment of all fees due by the Client to Easycall under this Agreement, Easycall agrees to provide the Services to the Client. The Client may request at any time during the term of this Agreement that Easycall provide additional Services. Subject to the entering into of an Order Form and the payment of the relevant Fees for each additional Service Easycall shall provide each additional Service
Term
On signature of this Agreement the Services shall be provided to the Client for the Minimum Period or such other longer period as is set out in an Order Form. If the Client wishes to cancel the Agreement before the end of the Minimum Period the Cancellation Fee shall become payable. After the end of the Minimum Period this Agreement shall continue until terminated by either party on provision of three (3) calendar months notice in writing to the other.
Payment & Fees
1. In consideration of the supply of the Services by Easycall to the Client, the Client shall pay:
  1. the One-off Fee;
  2. the Recurring Fee; and
  3. Usage Fees on a monthly basis or as otherwise agreed in the Order Form.
2. Unless otherwise specified to the contrary in an Order Form, the Client will be billed the Recurring Fee quarterly in advance of the provision of the Services and payment of such fees shall be due within fourteen (14) days of invoice date. The One-off Fee will be billed in advance of the provision of hardware and/or installation by Easycall, unless otherwise stated in the Order Form and payment of such fee shall be due within fourteen (14) days of invoice date. All payments will be made in Pounds Sterling at Easycall address set out in this Agreement or at such other address, or to such other bank account as Easycall may from time to time indicate by proper notice to the Client.
3. The Recurring Fee for the Services will be reviewed on the first and each subsequent anniversary of the date of this Agreement. Easycall reserves the right to increase prices at such time, however such increases shall be limited to the increase in the Retail Prices Index. plus two (2) per cent.
4. Notwithstanding Clause 4.3 above, Easycall reserves the right to increase the Recurring Fee and Usage Fees in the event that Easycall' third party suppliers increase the cost of software licenses, telecommunications costs or machinery maintenance costs during the term of this Agreement, such increase in the Recurring Fee or the Usage Fees to be no more than the third party supplier's increase.
5. In the event of late payment in respect of any sum due by the Client to Easycall, Easycall shall reserve the right to charge the Client interest at the rate of two (2) per cent above the Barclays Bank plc base rate from time to time calculated from the date when payment became due until the date of actual payment.
6. In the event of non-payment in respect of any sum due by the Client to Easycall, Easycall shall reserve the right instigate various remedies including but not limited to:
  1. withholding:
    1. physical access to Client equipment held on Easycall premises;
    2. remote access to Client equipment held on Easycall premises;
    3. access to software and data belonging to the Client either held on Client equipment in Easycall premises and/or held on Easycall core infrastructure.
  2. terminating communications circuits or other third party services directly controlled by Easycall.
  3. recovering sums owed by:
    1. disposing of Client equipment or content thereon;
    2. disposing of Client content held on Easycall equipment
7. All fees are exclusive of all Value Added Tax, sales, use, excise and other taxes which may be levied on either party as a result of the provision of the Services
Client's Obligations
1. During the term of this Agreement the Client undertakes to:
  1. pay the fees specified in Clause 4 above;
  2. comply with generally accepted principles of on-line usage (whether governed by any jurisdiction or not) including but not limited to; (i) refraining from sending "spam" mail (i.e. unsolicited mass communications); (ii) never deliberately sending mail bombs, trojan horses, viruses or other disruptive programs or devices; (iii) never pirating or otherwise illegally copying software or other proprietary material; and (iv) never violating the security of any website or engaging in unauthorised decryption of protected material;
  3. maintain the confidentiality and security of any passwords or other security features giving access to the Services;
  4. not alter, modify nor permit or authorise anyone other than Easycall or a third party identified by Easycall to provide any maintenance services in respect of any Easycall Equipment, communications network, computer programs or any other equipment or materials supplied by Easycall for use by the Client for the provision of the Services without Easycall' consent except that such consent shall not be required where Easycall refuses to provide the necessary maintenance services;
  5. retain full responsibility for the subscription and renewal of its domain names and retain contractual relationship with all Domain Naming Authorities. In respect to Domain registrations and renewals Easycall only acts as the Client's agent. Client to be bound by the terms and conditions of the Domain Naming Authority. Where Easycall acts as agent to Client for Domain Name registrations Easycall will make available to Client Naming Authority terms and conditions. Easycall does not guarantee that Client will be able to register any requested Name and until provided specific confirmation Client commits not to assume that registration has been effected. Easycall does not provide any warranty that the Internet Domain Name requested will not infringe the rights of any third party. Client agrees to indemnify Easycall in respect of any such infringement.
  6. notify Easycall of any changes to its infrastructure which may affect the provision of the Services including but not limited to Telecom Equipment, Client Premises Equipment and the Client Local Area Network ("LAN");
  7. fully co-operate with Easycall's personnel in the diagnosis of any error or defect in any of the Services.
  8. Carry out its identified tasks in the Easycall implementation plan and fully support all other activities contained in the plan
2. Except to the extent and in the circumstances expressly required to be permitted by Easycall by law, the Client shall not alter, modify, adapt or translate the whole or any part of the Services in any way whatever nor permit the whole or any part of the Services to be combined with or incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things.
3. The Client agrees that in connection with the exercise of its rights and performance of its obligations under this Agreement, the Client will comply in all material respects with all applicable laws and regulations. The Client acknowledges that Easycall exercises no control whatsoever over the content of the information passing through the Telecom Equipment and that as between the Client and Easycall it is the sole responsibility of the Client to ensure that information it transmits and receives complies with all applicable laws and regulations.
4. The Client agrees that it will comply at all times with Easycall's rules and regulations in existence from time to time and of which it is notified.
5. The Client will be fully responsible for all charges, costs, expenses and third party claims that may result from its use of, or access to the Services including but not limited to any unauthorised use of any access devices provided to the Client by Easycall hereunder except resulting from Easycall or its employees' negligence or wilful misconduct. Except with the advance written consent of Easycall, the Client's access to the Services will be limited solely to its employees and authorised contractors.
6. The Client shall provide for the Client Premises Equipment and Client Server Equipment all relevant information such as serial numbers, contract details and any other information that Easycall reasonably requests in order to allow Easycall to liaise with third parties in resolving any hardware, software or service failure for any Services.
7. The Client shall ensure that all Client Premises Equipment and/or Client Server Equipment has a current valid maintenance contract and shall on request provide Easycall with details of such contracts.
8. Where the Services are hosted on Client Server Equipment;
  1. if such equipment is not maintained by Easycall, the Client will provide to Easycall details of any third party or representative of the Client authorised to maintain such equipment. Except in the case of emergency maintenance, the Client must provide Easycall with one (1) hour's notice in writing of its intention to perform such maintenance. In the case of emergency maintenance, the Client must notify Easycall as soon as possible that access is required to the Client Server Equipment and, on receipt of such notice, Easycall shall grant such access as soon as reasonably possible;
  2. the Client may not replace such equipment situated at Easycall's premises without Easycall's consent. The Client must provide at least one (1) Business Day's notice in writing of its intention to do so. Any replacement equipment is subject to Easycall's approval, which will not be unreasonably withheld;
  3. except in the event of the termination of this Agreement, the Client may not remove any Client Server Equipment from Easycall's premises without Easycall's consent. On termination of this Agreement, the Client must remove such equipment within thirty (30) days at its own cost, however Easycall reserves the right to retain such equipment until all monies due and owing by the Client are paid to Easycall in full.
Easycall Warranties
1. Easycall in performing its obligations under this Agreement represents and warrants that it:
  1. shall exercise reasonable skill and care;
  2. shall ensure that at all times only suitably qualified persons are used in the provision of the Services; and
  3. shall devote such time as is necessary for the proper and timely delivery of the Services.
2. Easycall warrants to the best of Easycall's knowledge that the Services shall not:
  1. infringe on the Intellectual Property Rights of any third party;
  2. violate any law, including the laws and regulations governing export control;
  3. contain any viruses, or any other computer programming routines in existence or yet to be created that are intended to damage, interfere with or intercept any system or extract any data or personal information.
3. Except for the express warranties set out in this Clause 6 the provision of the Services hereunder are performed, provided and made available on an "as is" basis and the Client's use of the Services is at its own risk. Easycall does not make, and hereby disclaims, any and all other express and/or implied warranties, including but not limited to warranties of satisfactory quality, fitness for a particular purpose and any warranties arising from course of dealing, usage or trade practice.
4. Easycall does not and cannot control usage of the Internet as this is controlled by third parties. At times, actions or inactions caused by third parties can produce situations in which Easycall's connections to the Internet, or portions thereof, may be impaired or disrupted. Easycall will use reasonable endeavours to take action it deems reasonably appropriate to remedy and avoid such events but Easycall cannot guarantee that they will not occur. Accordingly, Easycall disclaims any and all liability arising from unavailability of the Internet.
5. Easycall warrants that the Intellectual Property Rights in the Services are either owned by or licenced to Easycall. Easycall shall defend the client against any third party claim, action, suit or proceeding resulting from breach of this warranty. Subject to clause 8, Easycall shall indemnify the client for all losses, damages, liabilities and other reasonable expenses and costs incurred by the Client as a result of a breach of this clause. Easycall's obligations are conditional upon the Client:
  1. giving Easycall prompt written notice of any claim, action, suit or proceeding for which the client is seeking indemnity:
  2. granting control of the defence and settlement to Easycall;
  3. reasonably co-operating with Easycall at Easycall's expense.
6. Use of the Services by the client does not create Intellectual Property Rights in such Services.
Indemnity
1. The Client shall defend Easycall against any third party claim, action, suit or proceeding resulting from the Client's acts, omissions or misrepresentations under this Agreement (including without limitation the Client's breach of the obligations contained in Clause 5). Subject to Clause 8 the Client shall indemnify Easycall for all losses, damages, liabilities and all reasonable expenses and costs incurred by Easycall as a result of any such claim, action, suit or proceeding including final judgment entered against Easycall.
2. The Client's obligations are conditional upon Easycall:
  1. giving the Client prompt written notice of any claim, action, suit or proceeding for which Easycall is seeking indemnity;
  2. granting control of the defence and settlement to the Client; and
  3. reasonably co-operating with the Client at the Client's expense.
Limitations on Liability
1. Neither Party excludes liability for personal injury or death resulting from negligence or for fraud.
2. In no event shall Easycall be liable for any special, incidental or consequential damages (however arising, including negligence) arising out of or in connection with this Agreement, including but not limited to loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings.
3. Easycall accepts liability to the extent that it results from Easycall's negligence and its employees for physical damage to or loss of the Client's tangible property up to the amount of one million pounds (£1,000,000) in respect of each incident or series of connected incidents.
4. Save as provided in Clause 8.3, or as specifically stated in an Order Form and not withstanding anything to the contrary in other provisions in this Agreement, Easycall's maximum liability to the Client related to or in connection with this Agreement will be limited to the total amount paid by the Client to Easycall hereunder in the twelve (12) month period prior to any claim.
5. Easycall and the Client acknowledge and agree that the allocation of risk and liability contained in this Agreement is reasonable in all the circumstances having regard to all relevant factors including the nature of the Services, the negotiated charges and the ability of the Client to rely on its own respective insurance arrangements and other resources to bear or recover any loss or damage incurred for which Easycall is not liable. The Client acknowledges that Easycall has set its Recurring Fees and entered into this Agreement in reliance on the limitations of liability and disclaimer of warranties and damages set out in this Clause 8.
Confidential Information
Each party shall hold the other party's Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party's Confidential Information for any purpose other than the purposes of this Agreement. The foregoing restrictions on disclosure shall not apply to Confidential Information which:
1. is already known by the recipient;
2. becomes, through no act or fault of the recipient, publicly known;
3. is received by recipient from a third party without a restriction on disclosure or use; or
4. is independently developed by the recipient without reference to the other party's Confidential Information.
Termination
1. Except as otherwise provided for in this Agreement:
  1. either party may terminate this Agreement upon a material breach of the other party if such a breach is not remedied within thirty (30) Business Days following written notice to the breaching party containing a warning of intention to terminate if the breach is not remedied; and
  2. Easycall may terminate this Agreement forthwith in the event that any invoice payable by the Client under this Agreement remains unpaid for more than sixty (60) days.
  3. The Client may terminate this Agreement forthwith by payment of the Cancellation Fee as provided in Clause 3
2. Clauses 8, 9 and 10 shall survive termination or expiration of this Agreement howsoever caused.
Marketing
The Client agrees that Easycall may refer to the Client by trade name and trademark, and may briefly describe the Client's business in Easycall's marketing materials and website. The Client hereby grants Easycall a licence to use any client trade names, trademarks or service marks solely in connection with the rights granted to Easycall pursuant to this Clause 11. All issued text to be agreed and approved by the client
Insurance
Easycall shall insure all its assets of an insurable nature against:-
1. loss or damage; and
2. other risks normally insured by person carrying on the same class of business.
Easycall agrees that it will not do or omit anything to be done which makes void or voidable any insurance in connection with the provision of the Services.
General Provisions
1. Severability and Waiver
  If any provision of this Agreement is held by a court of competent jurisdiction or other competent authority to be invalid unlawful or unenforceable for any reason then such part will be severed from the remainder of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Agreement, the parties shall promptly commence good faith negotiations to remedy such invalidity. No delay on the part of either party in exercising any right or remedy under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise of any right or remedy under this Agreement preclude any other or further exercise of such right or remedy.
2. Headings
  Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or described the scope or extent of such Clause or in any way affect this Agreement.
3. Assignment and Sub-contracting
  Easycall may assign, transfer, delegate or grant all or any part of its rights pursuant to this Agreement to any person or entity. The parties' rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.
4. Independent Contractors
  The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
5. Notice and Service
  1. Any notices or other communication given under this Agreement must be in writing and served:
    1. hand delivered to the recipient; or
    2. sent by first class recorded delivery post within the United Kingdom or by registered airmail post outside the United Kingdom correctly addressed to the relevant party at its registered office.
  2. Any notice served under Clause 13.5(a) is deemed to have been served:
    1. if hand delivered at the time of delivery;
    2. if sent by post within forty-eight (48) hours of posting, exclusive of the hours of Sunday, and public holiday, if posted to an address within the country of posting and seven days of posting if posted to an address outside the country of posting.
  3. Entire Agreement
    1. This document is the entire Agreement between the parties and supersedes all other agreements or arrangements, whether written or oral, express or implied (except in the case of fraud). No variations of this Agreement are effective unless made in writing signed by both parties or their authorised agents.
    2. Each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided in the Agreement (and except for fraudulent representations) and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
  4. Force Majeure
    1. Force Majeure means without limitation, any of the following which in each case is beyond the control of the parties:
      act of God; war, insurrection, riot, civil disturbance, acts of terrorism; fire, explosion, flood, fog, bad weather; theft, malicious damage, strike, lock-out, third party injunction; national defence requirements, acts or regulations of national or local governments; interruption to Telecom Equipment not owned or operated by Easycall; inability to obtain essential fuel, power, raw materials, labour, containers or transportation, network failures accident, malfunction of machinery or apparatus, denial of export or import licences and any other cause beyond the control of the parties.
    2. Neither party is to be liable to the other for failure to perform any obligation under this Agreement if and so long as the failure is caused by Force Majeure, the effects of which could not have been reasonably anticipated or prevented by that party.
    3. Force Majeure is not to affect the obligations of either party to pay to the other any amounts then due under this Agreement.
    4. A party becoming aware of any Force Majeure must promptly notify the other party in writing of the relevant facts and any likely delay or other effect and both parties will use all reasonable endeavours to overcome such limitations.
    5. If Force Majeure continues for thirty (30) days and either party is unfairly prejudiced as a result, that party may by written notice terminate this Agreement with immediate effect without liability to the other party for such termination.
  5. Law and Mediation
    This Agreement shall be governed by and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English Courts.
    1. Any dispute or difference which may arise between the parties in connection with or arising out of this Agreement shall in the first instance be referred to the Managing Directors of each party (or their designated representatives) who will meet within two weeks of written request to discuss and resolve any dispute in good faith.
    2. In the event that any dispute or difference which may arise between the parties in connection with or arising out of this Agreement is not resolved by the Managing Directors within one month of referral, or such other time as may be agreed between the parties, then the parties shall refer the dispute to mediation in accordance with the rules of CEDR (Centre for Dispute Resolution) or such other prime mediation body as the parties may agree.
    3. The costs of mediation shall be borne by the parties equally.
    4. Any concessions or waivers made by either party in or in connection with any mediation or any documents created for the purpose of any mediation shall be without prejudice and shall not be raised or relied upon by either party in any subsequent legal proceedings, save with the consent of the other party and the reference to or provision of a document in any mediation will not constitute a waiver of any privilege that a party would otherwise be able to assert in such document in any subsequent litigation.
    5. No mediator shall be called to give evidence in any subsequent litigation; and no such mediator or expert shall be entitled to act as an adviser to the parties in subsequent legal proceedings, whether as counsel, solicitor or independent expert.
    6. The parties may seek any interim or interlocutory or final relief from the Court at any time.
  6. The Contract (Rights of Third Parties) Act 1999
    A person who is not party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
  7. No Property Interest
    This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal properties. The Client acknowledges and agrees that it has been granted only a licence to use the Services in accordance with this Agreement. The Client has not been granted any property interests in the Services or the software or hardware used to provide the Services and the Client has no right as a tenant or otherwise under any real property or landlord and tenant laws.
  8. No Dangerous Usage
    The Services are not intended nor provided for use in connection with, and a Client will not use them for any nuclear, aviation, mass transit, life support or other inherently dangerous applications or services the failure of which could result in death, personal injury, catastrophic damage or mass destruction.
  9. Hierarchy
    In the event of a conflict between these Terms and Conditions and an Order Form the Order Form shall prevail.

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