In the Contract, the following terms have the meanings shown next to them:
All Hours means between 0000 and 2400 hrs. Monday to Sunday including public or bank holidays;
Applicable Law means the laws of the UK and the European Union and any other laws or regulations, regulatory policies, guidelines or industry codes which touch or concern the provision of the Services including the Communications Act 2003, the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000 and all regulations relating to the marketing and supply of the Services;
Artificially Inflated Traffic means the flow of telephone calls to any particular revenue share service which is, as a result or consequence of any activity by or on behalf of the Customer, disproportionate to the flow of calls which would be expected from good faith commercial practice and usage of the Service;
Authority means a regulatory or other competent authority including but not limited to the emergency services, HM Revenue and Customs, Trading Standards and/or Ofcom or similar regional authority and their successors from time to time;
Charge(s) means that charge(s) and other amounts payable by the Customer under this Contract, in particular in accordance with clause 5;
Conditions mean these Terms and Conditions for Acefone Business Services;
Content means applications, data, information, video, graphics, sound, music, photographs, software or any other material;
Contract means this agreement between Acefone and the Customer comprising the following documents, in the following order of precedence: the Managed Service Agreement; the Service Schedule; these Conditions, and the Acefone quotation or proposal and then any other documents expressly incorporated by any of these documents or by agreement between the Customer and Acefone;
Customer means the person with whom Acefone contracts to provide the Service;
Customer Equipment means any equipment (hardware), including any software, for use with the Service which is owned or controlled by the Customer;
DDI means a direct dial inbound telephone number that can be country specific to provide the Customer with a local (in country) presence but does not provide the same facilities that a fully functional country specific telephone number would;
Early Cancellation Charge means the charge applicable to the Customer for cancelling the Contract before the Service Start Date;
Early Termination Charge means the charge applicable to the Customer for cancelling the Contract after the Service Start Date but before the Minimum Period expiry date;
Finance Agreement has the meaning given to it in clause 5.2;
Gateway means any device(s) which enables the automatic routing of calls;
Group Company means a subsidiary or holding company including a holding company, or a subsidiary of any such holding company, all as defined by Part 38, Section 1159 of the Companies Act 2006;
Intellectual Property Rights means any patent, petty patent, registered design, copyright, design right, database right, rights in designs, invention, semiconductor topography right, know-how, or any similar right exercisable in any part of the world and including any applications for the registration of any patents or designs;
Minimum Period means the intended minimum contract period over which the Service will be provided which is usually 36 months, or as stated on the MSA, and measured from the Service Start Date;
Office Hours means between 9.00am and 5.00pm on any day which is not Saturday, Sunday or a UK public or bank holiday;
Service means the service or part of the service or equipment that is ordered by the Customer and specified in the relevant Contract documents;
Service Catalogue means a schedule that describes the Service or part of the Service provided by Acefone;
Service Level Agreement (SLA) means the schedule that describes the delivery and performance standard governing the provision of a Service by Acefone;
Service Schedule means a schedule to these Conditions that provide details of the Service. This includes the Service Catalogue(s) and the Service Level Agreement;
Service Start Date means the date on which the Service is first made available to the Customer unless otherwise stated in the Service Schedule. This may sometimes also be referred to as the operational service date or delivery date and will be advised to the Customer once known by Acefone;
Site means the place(s) at which Acefone provides Service;
Acefone means The Real PBX Limited of 3, Willow Close, Holborough Lakes, Snodland, Kent, England, ME6 5FA registered in England and Wales with Company Registration No. 10471487;
Acefone Equipment means any equipment, including any Software, owned or controlled by Acefone to provide the Service;
Software means any software and associated written and electronic documentation and data provided by Acefone under the Contract;
User means anyone who is permitted by the Customer to use or access the Service;
User Security Details means any IDs, user names, personal identification numbers and passwords;
Working Day means any day between Monday and Friday, excluding UK bank and public holidays.
The Contract begins on the date Acefone communicates its acceptance of the MSA for the Service and continues until ended by the Customer or Acefone in accordance with this Contract.
After the Minimum Period the Contract will automatically renew for a period of twelve months at every Contract anniversary unless terminated by Customer or Acefone 1 full calendar month before the Contract anniversary date (falling on or after the end of the Minimum Period) unless ended as set out in clause 7 of this Contract.
The Service commences on the Service Start Date.
Where Acefone sells equipment to the Customer, the terms of this Contract will also apply in relation to that sale of equipment and title shall only pass to the Customer once payment in full has been received by Acefone. In the meantime the Customer is fully responsible for the safe keeping, maintenance and insurance of that Acefone Equipment.
Where Acefone provides equipment to the Customer for use during the Contract the Customer is fully responsible for the safe keeping, maintenance and insurance of that Acefone Equipment.
The Customer agrees that Acefone shall always have a right of access to the Customer Site to inspect and maintain or remove the Acefone Equipment.
The Customer shall (a) notify Acefone immediately in writing in the event of any loss or damage to any Acefone Equipment, (b) pay all insurance proceeds in connection therewith to Acefone forthwith on receipt, and (c) in any event hold any such sums on trust for the benefit of Acefone absolutely.
Provision of the service
Site Preparation, Access and Installation
The Customer agrees to prepare the Site according to any instructions Acefone may give and to provide Acefone with reasonable access to the Site for the purposes of the Contract. The Customer agrees to provide at its expense a suitable place and conditions for Acefone Equipment and, where required, continuous mains electricity supply, Internet and other services connections and environmental conditions as specified by Acefone.
The Customer will obtain any permission needed for Acefone to put Acefone Equipment on the Site or to configure the Acefone equipment remotely if possible.
The Customer and Acefone will meet each other’s reasonable safety and security requirements when on the Site. The Customer and Acefone agree to look after each other’s equipment on the Site. If the Customer or Acefone damages the other’s equipment it must pay for any repair or replacement needed. This does not apply where the damage results from normal use.
Acefone will try to provide the Service by the date agreed with the Customer, but all dates should be considered as estimates as often they are based on information provided to Acefone by third parties.
The Customer will be responsible for making the Site good, after any work has been undertaken by Acefone at the Site, including putting items back and for re-decorating.
The Customer will not permit or make without limitation any attempt to disassemble, deconstruct, break down, hack or otherwise interfere with any Acefone Equipment.
For the avoidance of doubt only those services recorded in the MSA shall form part of this agreement. Acefone accept no liability for any service not specifically mentioned in the MSA. It is the Customers responsibility to ensure all details are correctly recorded on the MSA.
The Customer will ensure a suitable insurance policy is in place for the Acefone Equipment whilst on the Site.
Faults and Repair
Acefone will try to provide uninterrupted service, but the Customer understands and agrees that from time to time faults and/or Service interruptions may occur.
If the Customer reports a fault in the Service Acefone will repair the fault in accordance with the Service Level Agreement which is available on request. If Acefone agrees to work outside the hours specified in the Contract or if the Customer reports a fault and Acefone finds there is none or that the Customer has caused the fault, Acefone may apply a charge. This charge will be as detailed in the Service Schedule or if not detailed based on the time expended multiplied by £80 plus VAT per hour.
In the event the fault is caused by a third party either contracted to Acefone but not controlled by Acefone or contracted and controlled by another party, then Acefone will do everything it reasonably can to facilitate the repair of the fault but the Customer acknowledges this will be on a best endeavours basis and that Acefone cannot be held responsible for any delays caused by the third party.
Acefone Equipment Maintenance
Provide routine maintenance and repair to the Acefone Equipment during Office Hours as required by the manufacturers guidelines;
Use our reasonable endeavours to respond to Customer service requests in accordance with the SLA provided that time shall not be of the essence as response times cannot be absolute due to location and unpredictable demand;
If requested in writing, to train up to two Customer employees to use the Acefone Equipment correctly;
So far as Acefone is reasonably able to supply and deliver consumables as requested by the Customer in writing. Acefone aims to deliver these within two days from written request;
The maintenance and repair does not apply to consumable parts, the provision of which shall be subject to availability,
If a service call identifies that the problem is as a result of lack of maintenance and cleaning on the Customer’s part, the Acefone Equipment being physically moved, improper use or damage resulting from attempts by persons other than Acefone or its representatives the Customer will be charged for the call out,
If the Customer requests a service call out and no fault is found or if it relates to routine operation of the Acefone Equipment the Customer will be charged for the call out.
On expiry of the warranty applicable to the Acefone Equipment or any part of the Acefone Equipment, Acefone will charge the Customer for the cost of all parts and labour used in maintaining and or servicing the Acefone Equipment.
Regulations and use of the service
Any Customer Equipment must be: technically compatible with the Service and not harm Acefone’s network, third party network or another customer’s equipment; connected using the applicable Acefone network termination point or other Acefone approved process, and used in compliance with any relevant Acefone instructions, standards or Applicable Laws; and adequately protected by the Customer against viruses and other breaches of security.
The Service must not be used: in any way that is unlawful or in contravention of any licence, code of practice, instructions or guidelines issued by a regulatory Authority, third person’s rights or Acefone’s Acceptable Use Policy located on their website or to send, communicate, knowingly receive, upload, download or use any material or make any calls that are offensive, abusive, indecent, defamatory, obscene, menacing, cause annoyance, inconvenience, needless anxiety or are intended to deceive; or to establish, install, operate or use a Gateway; or to participate in any other activity or conduct which may result in Artificially Inflated Traffic; or in any way Acefone considers is or is likely to be detrimental to the provision of the Service to the Customer or service to any of Acefone’s other customers.
The Customer will comply with Acefone’s reasonable instructions regarding health, security, safety or the quality of the Service.
The Customer is responsible for the proper use of User Security Details, if any, and must take all necessary steps to ensure they are kept confidential, secure and not made available to unauthorised persons in accordance with Acefone’s Password Policy located on their website.
If the Customer believes that any User Security Details are or are likely to be used in an unauthorised way, the Customer must inform Acefone immediately.
Acefone does not guarantee the security of the Service against unauthorised or unlawful access or use. If Acefone believes there is or is likely to be a breach of security or misuse of the Service Acefone may: change and/or suspend the User Security Details (and notify the Customer that it has done this); or require the Customer to change the User Security Details.
Where the Service requires access to the internet the Customer understands and agrees that the use of the internet is at the Customer’s own risk.
Occasionally Acefone may: change the way Acefone provides the Service, provided that any change to the way Acefone provides the Service does not significantly affect the performance or functionality of the Service; or interrupt or suspend Service, without prior notice: to comply with an order, instruction or request of any governmental body, an emergency services organisation, or any Authority; if the ability of Acefone and/or a third party to connect to any Customer or Acefone Equipment, or any third-party services, network or software is withdrawn or compromised for any reason; if the Customer is in breach of these Conditions, e.g. payment default; where it reasonably believes the Customer is in breach of clause 4.2.2 and 4.2.3; if Acefone has a right to terminate this Contract in accordance with clause 7; or where a third party suspends, limits or interrupts the Services (in whole or in part) as a result of the acts or omissions of the Customer; or as otherwise set out in any relevant Service Schedule; following, where reasonably practicable, prior notice to make any change, modification, enhancement, replacement of or additions to any Services in accordance with clause 6; and following, where reasonably practicable, prior notice, to undertake planned maintenance or testing.
If this happens Acefone will restore the Service as quickly as possible.
Any period during which the Services are suspended, interrupted or limited in accordance with clause 4.8 or 4.9 shall not be taken into account in the calculation of any Service’s compliance with any applicable Service level Agreement.
Acefone shall be entitled, by giving the Customer such advance notice as is reasonably practicable, to: change, modify, enhance, replace or make additions to any of the Services (or any part of them) in any way whatsoever as Acefone sees fit in its absolute discretion for any reason at any time; and alter the way in which any Services are delivered.
The Customer can transfer numbers to Acefone to use with the Service or acquire numbers from Acefone to use with the Service. However, if the Customer wants to transfer numbers to a new service provider at any time then £5 per number will be payable by the Customer prior to the transfer process commencing. Thereafter Acefone will promptly deal with the number transfer request.
Given the limitations of the Acefone network some country specific telephone numbers will not provide access to certain in country local facilities like emergency services, Freephone numbers, non-geographic numbers and the like. In this instance Acefone would provide DDI numbers.
The Customer will indemnify Acefone against any claims or legal proceedings that are brought or threatened against Acefone by a third party because the Service is or has been used in breach of this Contract and Acefone will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings.
Acefone will indemnify the Customer against any claims or legal proceedings that are brought or threatened against the Customer by a third party where the Service is or has been used in fully in accordance with this Contract and the Customer will notify Acefone of any such claims or proceedings and keep Acefone informed as to the progress of such claims or proceedings.
In relation to any claim referenced in 4.12 or 4.13, the receiving party will promptly notify the other party in writing and must not make any admission without the other parties’ prior written consent. Both parties shall give the other all reasonable assistance in responding and dealing with any such claim.
Monitoring and Recording Calls
Acefone may monitor and record calls relating to customer services and telemarketing. Acefone does this for training purposes and to improve the quality of its customer services.
Charges and payments
Charges for the Service are as detailed on the MSA and calculated using the details recorded by Acefone. Other charges that may apply are set out in the relevant Service Catalogue and/or Contract.
If not specifically itemised and costed separately on the MSA the usage (excluding inclusive usage charges), connection and any other non-recurring charges include any subscription, rental, and other recurring charges (including inclusive usage charges).
Acefone may at its sole discretion choose to finance all or part of this Contract by way of assigning and/or otherwise transferring (with or without notice) the benefit of its right, title and interest (in whole or in part) to receive Charges and/or other amounts to a third party funder and the Customer acknowledges that these finance arrangements are acceptable (the “Finance Agreement”).
If Acefone choose to cover all or part of this Contract to the Customer under a Finance Agreement the Finance Agreement Charges are included in the Rental Charge and the following applies;
The Finance Agreement Rental Charge represents the following % of the total Rental Charge; ……………………………%
A schedule of items included in the Finance Agreement will be identified to the Customer prior to the Service Start Date.
The Initial Charge detailed on the MSA is payable to Acefone and is in addition to any other charge and is not refundable.
The Customer is responsible for and must pay the Charges for the Service whether the Service is used by the Customer or someone else with or without the permission of the Customer.
Acefone will send the invoices via email to the email address notified by the Customer to Acefone. Unless otherwise stated in the MSA, Acefone will send its first invoice shortly after payment of the Service, and then at monthly intervals. Sometimes Acefone may send the Customer an invoice at a different time.
The Customer will be liable for Charges for the Service from the Service Start Date, unless otherwise stated in the MSA. Time for payment for amounts due under this Contract shall be of the essence. The Customer shall pay Charges and all other amounts due in full on the due date in cleared funds without set off, deduction, withholding and/or counterclaim on any grounds whatsoever.
Unless otherwise stated in the MSA the Customer agrees to pay:
The subscription, rental, and other recurring charges within 10 days of receipt of the invoice (including inclusive usage charges); and
in arrears for usage (excluding inclusive usage charges), connection and any other non-recurring charges. Where possible these charges will appear on the Customer’s next invoice but sometimes there may be a delay.
All Charges are exclusive of VAT which is chargeable at the applicable rate, unless otherwise provided in the MSA.
As part of its credit management procedures, Acefone may at any time: carry out a credit vet of the Customer. The Customer agrees to provide Acefone with any information Acefone may reasonably require for this; and require the Customer to pay a deposit or provide a guarantee as security for payment of future invoices by the means requested by Acefone; and/or require the Customer to agree to a payment plan determined by Acefone that in Acefone’s sole opinion will cover their estimate of the Customers monthly charges for utilising the Services (“Monthly Payment Plan”).
Payment is due on the date specified on the invoice, which is normally 10 days from the date of the invoice unless otherwise stated in the MSA and any credits raised by Acefone will be applied directly to the Customer’s account.
The Customer must pay all charges by Direct Debit or Monthly Payment Plan or through Credit/Debit Card, unless otherwise advised by Acefone.
Payments made other than by Direct Debit or Monthly Payment Plan or Credit/Debit Card will be collected by Acefone but Acefone will levy an additional 3% payment processing fee onto the invoice.
Where Acefone has agreed that the Service can be included within a standard Acefone pricing package or scheme, the Customer agrees that while the Service is included within the pricing package or scheme the charges specified in the MSA may be amended by the terms of the pricing package or scheme. Upon termination of the pricing package or scheme, the charges will revert to those specified in the MSA.
Acefone shall invoice the Customer for the Services as detailed on the MSA. This may include a non-refundable deposit if detailed.
If the Customer disputes any charge on an invoice the Customer will notify Acefone in writing within 10 days of the date of the invoice with all relevant information.
Any disputes will be resolved promptly.
Any dispute received after a three (3) month period has elapsed will be processed at Acefone’s sole discretion.
If Acefone does not receive payment by the due date, ACEFONE may charge the Customer: a late payment charge of £80; and/or daily interest on late payments at a per annum rate equal to 4% above the base lending rate of the European Central Bank for the period beginning on the date on which payment is due and ending on the date on which payment is made (before and after judgment).
If the Customer does not pay an invoice, Acefone may instruct a debt collection agency to collect payment (including any interest and/or late payment charges) on its behalf. If Acefone instructs an agency, the Customer must pay Acefone an additional sum. This will not exceed the reasonable costs Acefone has to pay to the agency, who will add the sum to the Customer’s outstanding debt on Acefone’s behalf.
If any sum owed by the Customer to Acefone under the Contract or any contract with Acefone is not paid by the due date, Acefone may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with Acefone.
Additionally, if any sum owed by the Customer to Acefone under the Contract or any contract with Acefone is not paid by the due date, Acefone may suspend the service by giving minimum 24 hours’ notice on the registered email address mentioned on the MSA. Only when all outstanding payments have been paid to Acefone would the Services be recommenced. The Customer will continue to pay the Charges during any period of suspension.
Acefone may check the Customer’s details with a fraud prevention agency. If the Customer provides information that Acefone reasonably believes to be false or incorrect and Acefone suspects fraud, Acefone may record this information with a fraud prevention agency. Acefone and other organisations may use and search this information.
If the Service requires passwords and usernames to access the Service or control the Service, it is the responsibility of the Customer to manage this security. Acefone shall not be responsible for any security breaches in this regard nor shall it be liable for any costs that result from such a security breach.
Changing the contract
Acefone shall be entitled to change the Contract at any time to comply with Applicable Law or the direction or instructions of any Authority and will publish any change in line with clause 6.2. However, and if applicable, increases in the agreed charges to accommodate increased supplier and other operational costs shall only be applied on or after each anniversary of the Service Start Date.
Unless otherwise stated in the Contract, Acefone will publish any changes to the Contract (including the Charges) on their website and/or on the Customer invoice and/or in accordance with clause 10.14 and/or by following the Acefone Change Control Process (available on request), as follows: for changes that are to the Customer’s detriment (this includes any increases to the Charges or changes that require the Customer to make any changes to how the Service is used), at least 14 days before the change is to take effect; and for all other changes at least one day before the change is to take effect.
Ending this contract
The Customer may cancel the Contract or the Service at any time prior to the Service Start Date however an Early Cancellation Charge may apply;
In the event the cancellation is received within 7 days from the date of signing the MSA there will be no Early Cancellation Charge. However, if the Contract is subject to a Finance Agreement this limit is extended to 14 days.
In the event the cancellation is received after the deadline set in 7.1.1 but before the Service Start Date the Customer shall pay Acefone an Early Cancellation Charge of 50% of the total value of the Contract, being 50% of the total value of the Rental Charges on the MSA, plus 50% of the estimated usage charges on the MSA, multiplied by the remaining element of the Minimum Period, provided that clauses 7.1.1 and 7.1.2 shall not apply in respect of any part of the Contract (including any Acefone Equipment, Software and/or Services and/or any Rental Charges in connection therewith) which are the subject of a Finance Agreement (“Financed Items”) (which Financed Items shall be governed by clause 7.7).
The Contract or the Service after the Service Start Date may be terminated by either party on not less than thirty (30) days written notice to the other; however Early Termination Charge may apply in accordance with clause 7.3.
If the Customer or Acefone ends the Contract or the Service during the Minimum Period the Customer will pay Acefone an Early Termination Charge of 100% of the total value of the Contract, being 100% of the total value of the Rental Charges on the MSA, plus 80% of the estimated usage charges on the MSA or based on the average of the last 3 full usage months prior to notice being received from the customer, whichever is the lesser, the total of which shall be multiplied by the remaining element of the Minimum Period, provided that this clause 7.3 shall not apply in respect of Financed Items (which shall be governed by clause 7.7). Without prejudice to clause 7.7, this clause 7.3 will not apply if: the Customer ends the Contract or Service during the Minimum Period because Acefone is in material breach of this Contract and Acefone acknowledges that this breach cannot be rectified; or the Customer gives notice to end the Contract within one (1) month of Acefone notifying the Customer of a major (over 30%) increase to the charges or major ( as defined by Acefone) changes to the Conditions in either case to the Customer’s significant detriment; or
Acefone ends the Contract or the Service during the Minimum Period for convenience; or the Contract ends because either clause 9.6 or 10.3 applies.
The Customer may also end this Contract by way of notice in writing if:
Acefone materially breaches the Contract and, if the breach is capable of remedy, fails to put right the breach within 30 days of being asked by the Customer to do so; or
Insolvency proceedings are brought against Acefone or Acefone makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of Acefone’s assets or Acefone goes into liquidation or a corresponding event under any jurisdiction.
For the avoidance of doubt, in the event that the Customer terminates the Contract for any reason under any of clauses 7.3.1, 7.3.2, 7.3.3, 7.3.4, 7.4.1 and/or 7.4.2 and the Contract included Financed Items then such termination shall be without prejudice to the operation of clause 7.7 and the Customer retains its liability to pay the amounts referred to in clause 7.7 in respect of all such Financed Items.
Acefone may suspend the Service or end the Contract, or both, at any time without notice and apply the Early Termination Charge and/or require payment of the amounts referred to in clause 7.7 if: the Customer breaches the Contract or any other contract that the Customer has with Acefone and, if the breach is capable of remedy, fails to put right the breach within a reasonable time (not exceeding 30 days) of being asked by Acefone to do so. In this clause breach includes the Customer planning to or commencing to move the all or part of the Service to an alternative supplier without providing Acefone any notice of the change ; or
Acefone reasonably believes that the Service is being used in a way forbidden by clauses 4.1–4.6 and/or 4.8.2. This applies even if the Customer is unaware that the Service is being used in such a way; or bankruptcy or insolvency proceedings are brought against the Customer or the Customer does not make any payment under a judgement of a Court on time or the Customer makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of the Customer’s assets or the Customer goes into liquidation or a corresponding event under any jurisdiction.
If the Contract ends Acefone will refund any money owed to the Customer after first deducting any money due to Acefone under this Contract or any other contract that Acefone has with the Customer.
On any early termination of the hiring of any Financed Items for any reason whatsoever the Customer shall in respect of each such Financed Item: pay to Acefone a sum equal to all arrears of Rental Charges and other payments and interest, plus (as liquidated damages for Acefone’s losses) a sum equal to all the Rental Charges that the Customer would have paid had the Contract continued for the Minimum Period less a discount from the date of termination to the date each of the Rental Charges would otherwise have fallen due at a rate of 2% per annum; pay all Acefone costs in repossessing, repairing and selling the Finance Items and administration of the termination; and comply with the Customer’s obligations to return all Financed Items and compensate Acefone for any losses and/or failure to comply with such obligations. In particular, in the event Acefone need to attend the Site and remove and/or collect the Acefone Equipment the cost of this removal will be chargeable to the Customer. If the Acefone Equipment is not usable and in good working order and condition, free from any defects and without the need for repair or refurbishment, fair, wear and tear excluded, the Customer agrees to compensate Acefone for the unrecovered investment (if any) in the residual value of the Acefone Equipment.
Limitation of liability
Acefone accepts liability as set out in the Contract.
Neither the Customer nor Acefone excludes or restricts its liability for death or personal injury caused by its own negligence or the negligence of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation or to any extent not permitted by Applicable Law.
Unless otherwise expressly stated in the Contract neither the Customer nor Acefone shall be liable to the other in contract, tort (including negligence), breach of statutory duty or otherwise for any direct or indirect or consequential loss of profit, revenue, time, anticipated savings or profit or revenue, opportunity, data, use, business, wasted expenditure, business interruption or for any other direct or indirect or consequential loss or punitive damages which may arise in relation to the Contract whether or not the Customer or Acefone was advised in advance of the possibility of such loss or damage.
Subject to clauses 8.2, and 8.3, the Customer and Acefone accept liability to the other in contract, tort (including negligence) breach of statutory duty or otherwise for direct loss limited to £250,000 for any event or series of events in each Contract year. For the avoidance of doubt, this cap does not include any Early Cancellation or Termination Charges payable by the Customer and/or any amounts under clause 7.7.
Clause 8.4 will not apply to any obligation to pay Charges or to clauses 4.12, 4.13 and 9.5
Each part of this clause operates separately. If any part of a clause is held by a Court to be unreasonable or inapplicable the rest of the clause shall continue to apply.
The Customer is responsible for reviewing whether the Customer should enter into a business continuity insurance contract.
Any Service Credits paid or credited to the Customer shall be taken into account for the purposes of calculating the limit of Acefone’s liability.
Subject to clause 8.2, Acefone shall not in any circumstances be liable for: any claims made or alleged by a third party against the Customer as a result of the Customer’s failure to comply with its obligations under this Contract; any failure, non-provision or delay in the provision of the Services which: can be reasonably attributed to the acts or omissions of the Customer, its employees or agents or the interoperability of the Customer’s or any Customer products or applications with the Services; or occurs during any period of maintenance which is notified in accordance with the procedures as set out in the relevant Service Schedule; any unavailability of the Services that is due in whole or in part to the failure of any Customer Equipment, or any third-party services, network or software; and any claims made or alleged by third parties against the Customer that result from fraudulent use of the Services.
Intellectual property and confidentiality
The Customer agrees and acknowledges that all Intellectual Property Rights and other rights in the Services and the trademarks shall remain the property of Acefone or its licensors.
Acefone grants the Customer a non-exclusive, royalty free licence to use such Intellectual Property Rights in the Services as is necessary solely for the purposes of utilising the Services as permitted under this Contract.
Any use by the Customer of the Trademarks or the company name, company domain or domain name or any photograph or representation of any building of Acefone or a Acefone third party must be approved in writing by Acefone prior to its intended use, except to the extent permitted by Applicable Law.
The Customer shall immediately notify Acefone if it becomes aware of any unauthorised use of the Services or any Intellectual Property Rights in the Services or the trademarks. The Customer shall provide Acefone with all assistance reasonably requested to assist in taking all steps to maintain or defend such Intellectual Property Rights and trademarks.
To the extent Acefone reasonably requires a licence to use any Intellectual Property Rights owned or used by the Customer to perform its obligations or exercise its rights under this Contract the Customer grants Acefone a non-exclusive, royalty-free licence to use, operate, copy and modify such Intellectual Property Rights, solely for the purposes of performing its obligations and exercising its rights under this Contract.
If the Service becomes, or Acefone believes it is likely to become, the subject of a claim of infringement of any Intellectual Property Rights Acefone, at its option and expense, may secure for the Customer a right of continued use or modify or replace the Service so that it is no longer infringing, provided that the modification or replacement does not materially affect the performance of the Service. If none of the remedies in this clause is available to Acefone on reasonable terms, Acefone may notify the Customer and terminate the Service without liability to the Customer.
Except to the extent any disclosure is required by Applicable Law and as set out in clause 9.9 Acefone and the Customer will keep in confidence any information, whether written or oral, of a confidential nature obtained under or in connection with the Contract. The Customer and Acefone will not, without the consent of the other, disclose such information to any person other than: their Group Company employees or professional advisers who need the information in order for the Customer or Acefone to fulfil its obligations under the Contract; or in the case of the Customer, its Users to the extent that they are required to use or access the Service; or in the case of Acefone, the employees or professional advisers of its suppliers who need the information in order for Acefone to fulfil its obligations under the Contract.
Information Acefone holds about the Customer may be used for fraud prevention and credit vetting purposes and this may include Acefone sharing such information with third party companies including other communication companies.
Information will not be treated as confidential if it is: in the public domain other than in breach of the Contract; or lawfully in the possession of the Customer or Acefone before disclosure has taken place; or obtained from a third person who is free to disclose it; or replicated independently by someone without access or knowledge of the Information.
Where the Freedom of Information Act 2000 applies to the Customer and the Customer receives a request under the Act that includes any information held by the Customer that was provided by Acefone in connection with the Contract the Customer will: notify Acefone immediately of the request; and give Acefone at least five Working Days to make representations.
For the purposes of clause 9.11 – 9.17 “data controller”, “data processor”, “personal data” and “process” shall have the same meanings as within the Data Protection Act 1998 or the equivalent in any successive legislation or regulation.
The Parties agree that they will comply with all Applicable Law in relation to data protection, including the Data Protection Act 1998.
To the extent that either Party processes personal data on behalf of the other, the processing Party shall: use any such personal data solely for the purpose of performing its obligations under this MSA; process the same only in accordance with the other’s instructions including by correcting, suppressing, deleting or blocking such personal data from further processing and/or use, if requested by the other Party; take appropriate technical and organisational measures to prevent unauthorised or unlawful processing or, accidental loss or destruction of or damage to such personal data; provide the other Party from time to time such personal data in its possession as the other Party may require within five (5) Working Days, including information as to any specific individual Customer to whom the personal data relates; and
Each Party shall inform the other Party promptly in the event of any unauthorised or unlawful processing of personal data. In the event of any such accidental loss, destruction or damage to personal data, such Party shall: (i) provide the other Party with an explanation as to the cause of the breach and its proposals to remedy such unauthorised or accidental event; and (ii) take all reasonable steps necessary to remedy the breach and to minimise the likelihood of future breach.
In the event that a Party receives a subject access request from an individual about whom the other Party holds personal data for the purpose of fulfilling its obligations under this Contract, the receiving party shall promptly forward such request to the other Party.
The Parties acknowledge that Customer details are, as between Acefone and the Customer the property of the Customer and the Customer shall comply with all past, present and future laws relating to data retention. Subject to clause 9.17, Acefone shall not store, copy, disclose or use such details except as necessary for the performance by Acefone of its obligations and exercise of its rights under this Contract and for compliance with Applicable Law.
Where agreed, the Parties may share Customer details for marketing purposes and the Customer shall be responsible for obtaining all necessary Customer consents. Where agreed, Acefone may share such personal data with its third parties.
Matters Beyond Reasonable Control
If the Customer or Acefone is unable to perform, or is delayed in performing, any obligation under the Contract because of something beyond its reasonable control including act of God, lightning, flood, exceptionally severe weather, epidemic, pandemic, fire, explosion, war, civil disorder, industrial disputes or acts or omissions of local or central government or other competent authorities, or beyond the reasonable control of its suppliers or other third parties(“Force Majeure”) , it will have no liability to the other for that failure or delay in performing.
Acefone will not be liable for failure to or delay in supplying the Service if: another supplier delays or refuses the supply of an electronic communications service to Acefone and no alternative service is available at reasonable cost; or legal or regulatory restrictions are imposed that prevent Acefone from supplying the Service.
If any of the events detailed in clauses 10.1 or 10.2 continue for more than three months the Customer or Acefone may terminate the Contract in whole or part by written notice to the other.
Escalation and Dispute Resolution
Acefone will try to work through any dispute that the Customer may have with Acefone in accordance with the details set out in Acefone’s relevant Service Level Agreement located on their website or available on request. If this does not resolve the dispute, then clause 10.5 applies.
If a dispute arises out of or in connection with this Contract for the performance, validity or enforceability of it (“Dispute”) then the Parties shall follow the procedure set out in this clause 10.5: either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, senior managers of the Parties shall meet and attempt in good faith to resolve the Dispute; if the senior managers of the Parties are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to directors of the Parties who shall meet and attempt in good faith to resolve it; and if the directors of the Parties are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them then the Parties shall have no further obligation to follow this dispute resolution procedure.
Notwithstanding anything in this agreement (in particular clause 10.5), either party may initiate any legal action (including issuing proceedings) at any time without first complying with the procedure set out in Clauses 10.5.1, 10.5.2 and 10.5.3.
Transfer of Rights and Obligations
Acefone may assign, delegate, license, hold on trust or sub-Contract all or any part of its rights or obligations under this Contract.
This Contract is personal to the Customer who may not assign, delegate, license, hold on trust or sub-Contract all or any of its rights or obligations under this Contract.
Acefone and its Affiliates and assignees may enforce the terms of this Contract subject to and in accordance with this clause 10.9, this Contract and the Contracts (Rights of Third Parties) Act 1999 (“Act”).
A person who is not the Customer (including an employee, the officer, agent, representative or subcontractor of the Customer) has no right under Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This does not affect any right or remedy that exists or is available apart from that Act.
If any term of the Contract is held invalid, illegal or unenforceable by any court of competent jurisdiction, it will be severed and the remaining terms will continue in full force as if the Contract had been made without the invalid, illegal or unenforceable terms.
Clauses 5.14, 9.8, 9.9 and 9.11 will survive the termination or expiry of this Contract for two years. Any provisions of this agreement which are expressed to and/or intended to survive any termination or expiry of this Contract (howsoever caused) shall survive any such termination and/or expiry of this Contract (howsoever caused). Without prejudice to the generality of the foregoing, clause 7 (in particular clause 7.7) shall survive any termination and/or expiry of this Contract, howsoever caused.
The Contract contains the entire agreement between the Customer and Acefone and replaces all previous written or oral agreements relating to its content.
The Customer and Acefone agree that: they have not been induced to enter into the Contract by, nor have they relied on, any statement, representation, warranty or other assurance not expressly incorporated; and in connection with the Contract their only rights and remedies in relation to any statement, representation, warranty or other assurance are for breach of the Contract and that all other rights and remedies are excluded.
The terms of clauses 10.10 and 10.11 will not affect the rights or remedies of the Customer and Acefone for any fraudulent misrepresentation.
A failure or delay by the Customer or Acefone to exercise any right or act upon a breach under the Contract will not be a waiver of that right or breach. If the Customer or Acefone waives a right or breach of the Contract, that waiver is limited to the particular right or breach.
Notices given under the Contract must be in writing and delivered to the following addresses unless otherwise stated in the Contract: to Acefone at the address shown on the invoice or any email address which Acefone provides to the Customer for this purpose; or to the Customer at any one or more of the following: the registered email address to which the Customer asks Acefone to send invoices or the address of the Site or if the Customer is a limited company, its registered office.
This clause does not apply to notices given under clauses 2.1 and 6.1.
The Customer must inform Acefone immediately if there is any change to any of the contact information the Customer provided to Acefone.
Law and Jurisdiction
The Contract is governed by the law of England and Wales and is subject to the non-exclusive jurisdiction of the English courts.
Acefone may take instructions from a person whom it thinks, with good reason, is acting with the Customer’s permission.
Where there is a current or future conflict between any Ofcom, or other similar Authority, rules/guides the Customer agrees that these Conditions take precedent.
Acefone or any of Acefone’s group companies and partners can use customer brand names, logos, and testimonials for marketing/promotion-related activities.
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Refund Policy – https://www.acefone.com/us/refund-policy/