- In these Conditions the following terms shall have the meaning indicated: “the Agreement” shall mean the contract between ATC and the Customer to which these Conditions apply; “the Customer” shall mean the person, company or organisation to whom ATC agrees to provide the Services in accordance with these Conditions;
- “ATC” means Answer That Call Ltd, whose Company Number is 10915122 and whose registered office is at 5th Floor Suite, 63-66 Hatton Garden, London EC1N 8LE ;
- “Retail Prices Index” the Retail Prices Index (all items, excluding mortgages) as published by the Office for National Statistics from time to time or failing such publication such other index as the parties may agree most closely resembles such index;
- “Services” means the services to be provided by ATC to the Customer under the Agreement.
- Headings in these Conditions shall not affect their interpretation.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
- A reference to writing or written includes faxes and email.
- Any obligation in the Agreement on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
- References to these Conditions are to the conditions of the Agreement.
Scope of Conditions
- These Conditions shall apply to and be incorporated into the Agreement; and
- These Conditions shall prevail over any inconsistent terms or conditions contained, or referred to in any document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
- The commencement of the provision of the Services by ATC (including provision during any trial period) constitutes an offer by ATC to supply the Services in accordance with these Conditions and the Customer agreeing to use the Services constitutes acceptance of these Conditions The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Agreement.
- ATC’s duties to the Customer shall consist of the provision of the Services to include the receiving of incoming telephone, fax, email or other electronic messages intended for the Customer and the dispatch to the Customer of such messages by telephone, post, fax, email or text.
- In the event that items and/or materials other than agreed correspondence addressed to the Customer are delivered to ATC’s address, ATC shall bear no responsibility to the sender, the Customer or any third party and ATC reserve the right to dispose of such items and/or materials as it thinks fit.
- Subject to clause 5.2 and unless otherwise agreed in writing the Agreement shall be for a fixed period as shown in the Customer Order from the date specified as the service commencement date in the first invoice issued by ATC and thereafter it may be terminated (on written notice by either party) on one month’s notice prior to the Customer’s next invoice due date.
- In the event that the Services comprise temporary or holiday cover the Agreement shall be for a period of one month only without the requirement for notice from either party.
- Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other in accordance with this clause 5 or immediately on giving notice to the other if:
- the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
- the other party commits a material breach of any of the terms of the Agreement and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
- the other party repeatedly breaches any of the terms of the Agreement or conducts itself in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
- the other party commences negotiations with its creditors, appoints an administrator or receiver or suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable
- to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply.
- On termination of the Agreement for any reason:
- the Customer shall immediately pay to ATC all of ATC’s outstanding unpaid invoices and interest and in respect of Services supplied but for which no invoice has been submitted ATC may submit an invoice, which shall be payable immediately on receipt;
- the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
Charges Payment and Interest
- Unless otherwise agreed in writing by ATC all sums due to ATC under the Agreement shall be payable by the Customer by direct debit, electronic recurring payment or credit card on receipt of ATC’s invoice.
- All invoices submitted by ATC shall be treated as agreed unless the Customer notifies ATC of any discrepancies within 7 days of the date of the invoice.
- All charges under the Agreement shall be subject to VAT at the prevailing rate, where and when applicable.
- ATC may at its discretion assign to the Customer a credit limit and shall notify the Customer of such a limit in writing. In the event the aggregate value outstanding from the Customer exceeds this limit ATC reserves the right to terminate the provision of the Services forthwith in accordance with clause 5.
- The parties agree that ATC may review and increase the charges for the Services. ATC will give the Customer one month’s written notice of any such increase.
- Without prejudice to clause 6.5 ATC reserves the right to increase the charges for the Services on an annual basis in line with the percentage increase in the Retail Prices Index in the preceding twelve month period.
- Without prejudice to any other right or remedy that it may have, if the Customer fails to pay ATC on the due date, ATC may:
- charge Statutory interest at 8% above the Bank of England base rate on such sum from the due date for payment on a daily basis and compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. ATC may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
- suspend all Services until payment has been made in full.
The Customer undertakes to provide ATC with all information and cooperation that ATC reasonably requires to enable ATC to perform the Services and to observe its obligation under the Agreement.
Call Diversion Facility
- It is the Customer’s responsibility to ensure that the phone call divert facility is properly set up by their network provider to ensure that the respective call traffic is directed to the appropriate ATC telephone number.
- It is the Customer’s responsibility to ensure that all medium or means required to receive communications is fully operational.
Equipment and Software
- All software and hardware in whatever form provided by ATC for the purpose of providing the Services remains the property of ATC. ATC grants the Customer a non-exclusive, non-transferable licence to any such software for the purpose of using the Service and for no other purpose. The Customer shall not reproduce the software, shall keep it in confidence and shall not modify it.
- The Customer acknowledges that, where ATC does not own the software or hardware supplied, the Customer’s use of rights is conditional on ATC obtaining a written licence or sub-licence from the relevant licensor on such terms as will entitle ATC to licence such rights to the Customer.
Data and Call Monitoring
- Subject to clause 10.6 information about individual clients and their employees is kept strictly confidential in accordance with the Data Protection Act 1998
- All information disclosed by and/or relating to
- the customer and its directors, employees, contractors and consultants, and
- any person or organisation from whom ATC receives a telephone call. facsimile or email for or on behalf of the customer (a “caller”), will be treated as strictly confidential and not disclosed to any person, except to such of the customer’s directors, employees, contractors and consultants as the customer may notify to ATC from time to time.
- “Information” includes (without limitation)
- the name, company, firm or organisation, telephone number and other personal and contact details of the caller,
- the nature and content of the call, facsimile or email (including any attachments to the facsimile or email, and any messages or voicemails left by the caller), and
- the existence of the call, facsimile or email; whether disclosed, recorded or stored verbally, in writing, electronically, or by any other means;
- ATC will process all “personal data” (as defined in the Data Protection Act 1998) relating to the customer, the customer’s directors, employees, contractors and consultants, and callers strictly in accordance with the Data Protection Act 1998. For the purposes of this agreement, “process” will include (without limitation) the collection, recording, storage and disposal of personal data; and
- In the event that ATC breaches any or all of the above-mentioned provisions, the customer reserves the right to terminate the agreement forthwith without notice to ATC.
- The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency and personal data will be processed by and on behalf of ATC in connection with the Services.
- Calls may be monitored or recorded but only for training purposes or if required by law.
ATC shall have the right to assign, sub-contract or otherwise delegate all or any of its rights and obligations under the Agreement.
- This Condition 12 sets out the entire financial liability of ATC (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
- any breach of the Agreement including any deliberate personal repudiatory breach OR any deliberate breach of this Agreement by ATC, or its employees, agents or subcontractors;
- any use made by the Customer of the Services, or the equipment that has been supplied to the Customer under the terms of this Agreement or any part of them; and
- any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
- All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
- Nothing in these Conditions limits or excludes the liability of ATC:
- for death or personal injury resulting from negligence; or
- for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by ATC; or
- Subject to condition 12.2 and condition 12.3:
- ATC shall not be liable for: loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss of information; or any special, indirect, consequential or economic loss, costs, damages, charges or expenses.
- ATC’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance of the agreement shall be limited to an amount equal to the last monthly invoice for the Services used by the Customer.
ATC shall treat all messages as confidential. However, should ATC be served with an appropriate order or warrant ATC shall disclose such information as required by law.
ATC shall have no liability to the Customer under the Agreement if it is prevented from, or delayed in performing its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of ATC or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
- The Customer agrees that it will not use the Services for any matter which in the reasonable opinion of ATC constitutes any improper, immoral or illegal purpose and confirms that such use constitutes grounds for immediate termination of the Services by ATC.
- The Customer undertakes not to send or deliver or cause to be delivered to ATC’s premises any noxious, harmful, illegal, immoral, perishable, dangerous or bulky items or material and in the event of such a delivery ATC reserves the right to refuse to accept the items or material.
- The Customer shall cooperate with ATC in all matters relating to the Services
- The Customer shall: provide such access to the Customer’s premises and data, and such office accommodation and other facilities as may reasonably be requested by ATC and agreed with the Customer in writing in advance, for the purposes of the Services;
- The Customer shall: provide such information as ATC may reasonably request and the Customer considers reasonably necessary, in order to carry out the Services in a timely manner and ensure that it is accurate in all material respects;
- The Customer shall inform ATC of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises.
- The Customer shall at all times indemnify and hold harmless ATC from and against any and all claims demands proceedings, damages, penalties, costs, losses, liabilities and expenses of any kind, threatened, claimed or awarded against or otherwise incurred by ATC arising out of or in connection with the Transfer of Undertakings (Protection of Employment) Regulations 2006 as a result of the provision of the Services or otherwise.
- The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
- Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract.
- Nothing in this condition shall limit or exclude any liability for fraud.
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
- A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
- Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
No variation of the Agreement or these Conditions shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
- Any notice or other communication required to be given under the Agreement shall be in writing and shall be delivered personally, or sent by email, pre-paid first- class post, recorded delivery or by commercial courier to the other party at the address specified by the relevant party by notice in writing to the other party.
- Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address for the party or, if sent by email, pre-paid first-class post or recorded delivery, at 10.00am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
- This Condition 21 shall not apply to the service of any in any proceedings or other documents in any legal action.
This agreement shall be interpreted with English Law and both parties agree to be bound by the jurisdiction of the English Courts.