The following definitions and rules of interpretation in this clause apply in this Agreement.
Access Method where applicable, the method by which Assured Contact will provide particular Services to the Customer
Agreed Basis as more particularly referred to in clause 8.3 of this Agreement.
Agreement means the main body of this agreement and the Schedules and Annexes.
Agreement Date the date this Agreement was entered into.
AIT artificially inflated traffic which occurs when calls are made, often in high volumes and to high value revenue share number ranges (e.g. 09/0871/etc.) and often over short time periods for the purpose of fraudulently generating out-payments for the recipient of the calls, as further defined in the BT Standard Interconnect Agreement (SIA).
Applicable Laws any law, statute, statutory instrument, standards, order, resolution, regulation, regulation notice, rule of court, by-law, treaty, policy, directive, code of practice, direction or policies (including but not limited to those issued by OFCOM and PPP (in relation to the operation of premium rate services) from time to time) or other instrument with legal or actual force in any geographical area and/or over any class of persons in which the Services are supplied or otherwise applicable to the Services or use of Services.
ASR the answer seizure ratio, being the ratio of the number of telephone calls answered to the number of telephone calls actually made, to be calculated by dividing the telephone calls answered by the number of telephone calls made and multiplied by 100 (and expressed as a percentage).
Authorised Users those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services as further described in clause 2.
BT British Telecommunications plc.
Business Day a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Call means a call made over a transmission path through a telecommunication system with the minimum service features necessary to support a speech path such that voice may be transmitted over it.
Call Charges charges for Calls calculated by multiplying the duration of the Call by the Rate (pence per minute); or multiplying the number of calls by the rate (pence per call) or a combination thereof.
Change of Control shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Charges the Call Charges and other charges for the Services as set out in any Service Order or otherwise payable by the Customer for the Services.
CLI calling line identity data which includes the telephone number of the calling party.
Connection the connection of an End User to a Service.
Confidential Information information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.
CPS telephone calls per second being a measure of the number of telephone calls attempted on a per second basis at the Customer's peak Call times.
Customer the customer.
Customer Data the data inputted by the Customer, Authorised Users, or Assured Contact on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Customer Personal Data shall mean Personal Data in so far as it relates to, is generated or provided by the Customer, Authorised Users or the End User and is processed by Assured Contact on behalf of the Customer pursuant to this Agreement.
Data Controller, Data Processor, Personal Data Breach, Data Subject and Personal Data have the meanings as defined in the Data Protection Legislation.
Data Protection Legislation: means (i) GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the United Kingdom (ii) any successor legislation to GDPR and the Data Protection Act 1998.
End User(s) a person or third party who receives or uses (or is to receive or use the Services or who places a Call which uses or is to use) the Services.
Force Majeure Event as defined in clause 15.
Forecasts as more particularly defined in clause 7.8.
GDPR the General Data Protection Regulation ((EU) 2016/679).
Good Industry Practice the exercise of that degree of skill, diligence, prudence and foresight and operating practice which would reasonably and ordinarily be expected from time to time from an experienced business engaged in the same business as the Customer.
Inbound Traffic Routing the routing by Assured Contact of telephone calls received by it from the Customer, other networks or other customers to any one of the Numbers.
Initial Term the initial term of this Agreement.
International Organisation shall have the meanings as defined in the Data Protection Legislation.
Liability Cap Assured Contact's total liability to the Customer under this Agreement howsoever arising
Minimum Traffic Commitment any agreed Traffic levels which the Customer has agreed to.
Networks means the communications networks operated by the Network Providers and used by Assured Contact.
Assured Contact Group Company means Assured Contact and any entity that owns or controls, is owned or controlled by or is or under common control or ownership with Assured Contact, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
Assured Contact Personnel means all staff, contractors, employees, agents, subcontractors and sub-processors of Assured Contact.
Network Providers the communications network operators which provide connectivity between End Users and the Networks, through connecting to Assured Contact.
Normal Business Hours 9.00 am to 5.00 pm local UK time, each Business Day.
Numbers the numbers allocated to the Customer as part of the Services as from time to time amended by Assured Contact and/or the Customer.
Number Portability the service that enables subscribers (as more particularly defined in Directive 97/33/EC as amended by Directive 98/61/EC) to request retention of certain telephone numbers from an organisation providing a service.
Ofcom the regulator for the United Kingdom communication industries known as "Ofcom" (and any successor regulator).
Outbound Traffic Routing the routing by Assured Contact of calls received by it from the Customer to any number.
PPP PhonePayPlus or any other independent committee or competent authority, as may be appointed from time to time by Ofcom relating to the supervision and operation of Premium Rate Services.
Rate the rate payable per minute or per call or a combination thereof of a Call as set out in the Charges as amended from time to time pursuant to the terms of this Agreement.
Renewal Period the period described in clause 14.1.
Service Level Agreement the service level agreement.
Schedule any schedule referred to in this agreement that forms part of a service agreement
Service Order an order for Services submitted by the Customer to Assured Contact in accordance with the terms of this Agreement.
Services the services or any part or parts thereof provided by Assured Contact to the Customer under this Agreement.
Software the online software applications provided by Assured Contact as part of the Services.
Sub-processor means any person (excluding any employee of Assured Contact or employee of any of its sub-contractors) appointed by or on behalf of Assured Contact to process Customer Personal Data on behalf of the or any Group Company in connection with the this Agreement.
Support Services Guideline Assured Contact's policy for providing support in relation to the Services as made available to the Customer from time to time by Assured Contact.
Term the Initial Term together with any subsequent Renewal Periods.
Traffic such monthly Call minutes (including other calls) that are routed by Assured Contact on behalf of the Customer as part of the Services.
Unauthorised Person any person who is not authorised to use the Services as further described in this Agreement.
Virus any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any software, service, hardware or Network, including but not limited to worms, Trojan horses, viruses.
Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
2.1 Assured Contact grants to the Customer a non-exclusive, non-transferable right to use the Services in accordance with the terms of this Agreement.
2.2 The Customer agrees that it will ensure that Services are accessed by Authorised Users only and will prevent any third party to access the Services it shall maintain and provide a list of Authorised Users to Assured Contact upon written request at any time or times.
2.3 The Customer shall comply at all times with the Privacy and Security Policy and shall not (save as permitted by written agreement between Assured Contact and the Customer):
2.3.1 copy, modify, duplicate, create derivative works from, reverse compile, disassemble, reverse engineer, license, sell, rent, lease, display, download, or distribute all or any portion of the Services in any form or media or by any means; or
2.3.2 use the Services except for its own business purposes.
2.4 Assured Contact shall have the right to disable the Customer's access to the Services and/or any material that causes the Customer to be in breach of this Agreement or the Privacy and Security Policy.
2.5 The Customer will be liable in full for all Charges incurred or connected with the use of the Services or any part thereof, irrespective of whether the Services have been used by the Customer, its employees, agents or representatives and/or any Unauthorised Person.
2.6 The Customer will notify Assured Contact immediately of any reasonably suspected illegal, fraudulent or unauthorised use of the Services. Assured Contact will be entitled to suspend and/or terminate the Services upon receipt of such notice or where Assured Contact otherwise reasonably suspects such misuse of the Services.
2.7 Assured Contact will not recommence Services until it is reasonably satisfied that appropriate security and other measures stipulated by Assured Contact following such misuse or suspected misuse ("Stipulated Requirements") have been put in place to prevent any further unauthorised use of the Services. The Customer will remain liable for payment of the Charges, Fees, and/or any other costs or expenses for or associated with the Services whilst the Services are suspended or terminated in accordance with this clause 2.
2.8 Where Assured Contact has the right to suspend or terminate the Services under this clause 2 and the Stipulated Requirements have not been met within 20 days of request by Assured Contact, Assured Contact shall be entitled to terminate this Agreement immediately by written notice or on such other notice as Assured Contact may consider appropriate in all the circumstances.
2.9 Assured Contact shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
2.9.1 planned maintenance to be carried out during a maintenance window that has been notified by or on behalf of Assured Contact to the Customer; and
2.9.2 unscheduled maintenance performed outside Normal Business Hours.
2.10 Assured Contact shall use reasonable endeavours to give the Customer such notice (under clauses 2.9.1 and 2.9.2) as is reasonably practicable in all the prevailing circumstances.
3.1 Assured Contact will, as part of the Services and at no additional cost to the Customer, use all reasonable endeavours to provide the Customer with Assured Contact's standard customer support services during Normal Business Hours in accordance with Assured Contact's Support Services Guidelines in effect at the time that the Services are provided. Assured Contact may amend the Support Services Guidelines in its discretion from time to time and shall use its reasonable commercial endeavours to ensure that such amendment does not materially and adversely affect the Services. The Customer may purchase enhanced support services separately at Assured Contact's then current rates.
3.2 The Customer hereby acknowledges and agrees that Assured Contact is not responsible for maintenance of the Customer's equipment ('Customer Equipment') nor shall Assured Contact be obliged to deal with or respond to any fault or service interruption in respect of the Customer Equipment.
4.1 For the purposes of this Agreement the Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 Assured Contact shall implement its archiving policies and procedures in respect of Customer Data in accordance with Applicable Laws.
4.3 Assured Contact shall, in providing the Services, comply in all material respects with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at https://assuredcontact.co.uk/privacy as such document may be amended from time to time by Assured Contact in its sole discretion.
4.4 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and Assured Contact is the Data Processor in respect of the Customer Personal Data. Annex A sets out the scope, nature and purpose of processing by Assured Contact, the duration of the processing and the types of the Customer Personal Data and categories of Data Subject.
4.5 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to Assured Contact and continued processing by Assured Contact for the duration and purposes of this Agreement.
4.6 Details of the Customer Personal Data being processed by Assured Contact in the provision of Services are set out in Annex A.
4.7 Assured Contact shall, when GDPR comes into force, in relation to any Customer Personal Data processed in connection with the performance by Assured Contact of its obligations under this Agreement:
4.7.1 ensure that it has in place appropriate technical and organisational measures to process that Personal Data only on the written instructions of the Customer unless Assured Contact is required by the laws of any member of the European Union or by the laws of the European Union applicable to Assured Contact to process Personal Data (Applicable EU Laws). Where Assured Contact is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Assured Contact shall promptly notify the Customer of this before performing the processing required by the Applicable EU Laws unless those Applicable EU Laws prohibit Assured Contact from so notifying the Customer. Following any exit by the United Kingdom from the EU, Applicable EU Laws shall be deemed to include applicable UK laws to the extent that this is permitted by and consistent with applicable Data Protection Legislation;
4.7.2 protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Customer Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
4.7.3 ensure that all Assured Contact Personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential; and
4.7.4 not transfer any Customer Personal Data outside of the European Economic Area or to an International Organisation unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
22.214.171.124 the Customer or Assured Contact has provided appropriate safeguards in relation to the transfer (or the country or territory or international organisation (as applicable) to which the Personal Data is transferred is the subject of a positive decision of adequacy, that is, the European Commission has determined that it ensures an adequate level of protection);
126.96.36.199 the data subject has enforceable rights and effective legal remedies;
188.8.131.52 Assured Contact complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Customer Personal Data that is transferred; and
184.108.40.206 Assured Contact complies with documented instructions notified to it in advance by the with respect to the processing of the Customer Personal Data;
4.7.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
4.7.6 notify the Customer without undue delay on becoming aware of a Personal Data breach relating to Customer Personal Data;
4.7.7 at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable EU Laws or other Applicable Laws to store the Personal Data; and
4.7.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 4.7 and allow for audits by the Customer or the Customer's designated auditor.
4.8 Any appointment of a Sub-processor by Assured Contact is subject to the Customer's prior written consent and provided in any event that Assured Contact has entered into an agreement with the relevant Sub-processor imposing the same data protection obligations on the Sub-processor as set out in clause 4.7.
4.9 Assured Contact may appoint other Assured Contact Group Companies as a Sub-processor of Customer Personal Data in order to provide Services under this Agreement. Assured Contact agrees that it has entered or (as the case may be) will enter into a written agreement with such imposing the same data protection obligations on Assured Contact Group Companies as set out in clause 4.7 prior to any transfer of any Customer Personal Data to any such Assured Contact Group Company.
4.10 As between the Customer and Assured Contact, Assured Contact shall remain fully liable for all acts or omissions of any Sub-processor appointed by it pursuant to this clause 4.
5.1 The Customer acknowledges that the Services may enable it to access content or purchase products and services from third-party websites and that it does so solely at its own risk. Assured Contact makes no representations or endorsements and shall have no liability or obligation whatsoever in relation to such third-party websites. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Assured Contact.
6.1 Where specified, Assured Contact shall provide certain Services to the Customer via the Access Method.
6.2 Assured Contact undertakes that the Services will be performed substantially in accordance with the Service Order and with professional skill and care.
6.3 Assured Contact:
6.3.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free or will meet the Customer's requirements; and
6.3.2 is not responsible for any delays or any other loss or damage resulting from the transfer of data over communications the Network(s), the Access Method, the Connection, the Numbers and the facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 Assured Contact hereby acknowledges that it will comply in all material respect with such Applicable Laws and Ofcom requirements insofar as they are necessary for the performance of its obligations under this Agreement.
6.5 Where specified in Schedule 2, the parties agree to the Service Level Agreement.
7.1 The Customer shall:
7.1.1 act fairly, ethically and reasonably in all dealings with End Users and/or the called party, and provide a high standard of service thereto in accordance with Good Industry Practice;
7.1.2 act lawfully and in good faith to Assured Contact and comply with all reasonable orders and instructions of Assured Contact from time to time in relation to the use of the Services;
7.2 keep such proper up to date books, accounts and records that are reasonable in all the circumstances, so as to show clearly all enquiries, transactions, and matters relating to this Agreement, the Services and in particular all transactions (including Connections) undertaken by the Customer in relation to the Services, and on demand provide Assured Contact, or its authorised representatives with copies of such records:
7.2.1 ensure, if applicable, that it is registered with the Information Commissioner for the protection of personal data and comply with all provisions of the Data Protection Act 1998 (as amended or superseded from time to time);
7.2.2 shall keep Assured Contact informed of all services including Services running on each Number or number range where applicable and to immediately notify Assured Contact in writing of any change and the full details of any change in respect of the Services and the number use only as required by law;
7.2.3 permit Assured Contact to withhold all or any sums payable to the Customer as ordered by a Regulating Authority or a Network Provider, or an AIT request from British Telecom plc. The Customer agrees to fully indemnify Assured Contact and hold Assured Contact harmless against any losses, claims or demands suffered or incurred by Assured Contact as a result of withholding any sums or any act or omission by Assured Contact relating to such order or request;
7.2.4 comply with all Applicable Laws and Good Industry Practice to include but not limited to those relating to Telephone Preference Service and/or silent or abandoned calls.
7.3 The Customer shall indemnify Assured Contact in full and on demand against claims, proceedings and/or threatened proceedings from third parties and against any loss or damage suffered by us arising from:
7.3.1 the Customer's use of the Services and/or any breach of or failure under this Agreement by the Customer (provided that such indemnity shall not apply to extent any loss or claim is caused by Assured Contact's failure);
7.3.2 fraudulent calls of any nature, including any calls made by an Unauthorised Person, which may comprise a portion of the Services to the extent that the party claiming the call(s) in question to be fraudulent is (or had been at the time of the call) an End User of the Services through the Customer or an End User of the Service through the Customer's distribution channels. The Customer shall not be excused from paying Assured Contact for the Services provided to the Customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services. In the event Assured Contact discovers or reasonably suspects fraudulent calls are being made, Assured Contact may take action (without notice to the Customer) that is reasonably necessary to prevent such fraudulent calls from taking place, including without limitation, denying Services to the Customer or terminating the Service to or from specific locations. Assured Contact shall not have any obligation to monitor the Service or take any action to detect fraudulent calls.
7.4 To the extent that the Customer makes any statements or representations to third parties, including the Customer's customers, with regard to Assured Contact, the Services or the terms of this Agreement, such statements or representations shall be true, accurate and not misleading and shall conform to and be consistent with the terms herein.
7.5 The Customer shall not represent to any third party that it sells the Services for or on behalf of Assured Contact unless agreed otherwise in writing.
7.6 Assured Contact shall be entitled at any time to request, and the Customer shall be obliged to provide as soon as is reasonably possible and in any event no later than 10 Business Days, such information, cooperation, documents and records as Assured Contact may reasonably require in order to establish to its reasonable satisfaction that the Customer is discharging its obligations under this Agreement.
7.7 The Customer shall:
7.7.1 provide Assured Contact with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by Assured Contact in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
7.7.2 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;
7.7.3 ensure that the Authorised Users use the Services in accordance with this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
7.7.4 obtain and shall maintain all necessary licences, consents, and permissions necessary for Assured Contact, its contractors and agents to perform their obligations under this Agreement;
7.7.5 ensure that its network and systems comply with the relevant specifications provided by Assured Contact from time to time; and
7.7.6 be solely responsible for procuring and maintaining its Network connections and telecommunications links from its systems to Assured Contact's data centres, and all delays, delivery failures and other loss or damage arising from or relating to the Customer's Network connections or telecommunications links or caused by the internet.
7.8 Assured Contact cannot guarantee availability of capacity for the Services in respect of Traffic that is not forecasted or for any material change or deviance from the forecasted Traffic. The Customer will provide Assured Contact with accurate Traffic forecasts ("Forecasts") as agreed with Assured Contact to include, but not limited anticipated number of calls, number of simultaneous calls, number of minutes, ASR and CPS for calendar month or other period. Assured Contact will use and rely upon the Customer's Forecasts to forecast the amount of potential numbering, switch and network capacity required to provide the Services to the Customer and use reasonable endeavours to provide numbering, switch and network capacity to meet the Customer's Forecasts.
7.9 Assured Contact shall have no liability to the Customer, for failing to provide or ceasing to provide any or sufficient numbering and/or switch and network capacity, or any underlying network configuration or other service affecting problems in the event that there is a material deviation from forecasted Traffic (volume or profile) and/or Customer demands a greater volume of minutes and/or increases its demands for call data records at any time if such increased demand for minutes and/or call data records was not included in and/or exceeds the relevant Forecast and/or without the consent of Assured Contact.
7.10 Assured Contact may place caps on CPS, Traffic and numbers of calls in cases where un-forecasted traffic causes or risks causing, unnecessary capacity limitations on other Assured Contact customers.
8.1 The Customer shall pay to Assured Contact all Charges in accordance with the terms of this Agreement. For the avoidance of doubt nothing in this Agreement shall prevent Assured Contact from claiming from the Customer any Charges which were not billed at the time of usage, within three months of the time of the unbilled calls and there shall be no time restriction on Assured Contact claiming these Call Charges and/or Charges.
8.2 Assured Contact shall have the right at any time to increase the Charges on giving to the Customer 30 day's prior written notice, as a result of:
8.2.1 (a) a direction, determination, order or decision of any government agency or regulatory body such as Ofcom and PPP or any other in any competent jurisdiction; or (b) any notice is issued by the Carrier or Network Operator amending or introducing a payment for telecommunications services; or
8.2.2 a variation of a Charge which has retrospective effect payable by Assured Contact in respect of any person authorised to run a telecommunication system in the Territory or elsewhere.
8.3 All Rates shall be rounded on the Agreed Basis and all sums payable under this Agreement are exclusive of VAT which shall be payable in addition.
8.4 If Assured Contact has not received payment within 30 days after the due date then:
8.4.1 Assured Contact may disable the Customer's password, account and access to all or part of the Services and Assured Contact shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
8.4.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.5 Any fraud or other improper or unlawful use of the Services by any person (other than Assured Contact) shall not relieve the Customer of its payment obligations to Assured Contact.
8.6 The Customer acknowledges that it is liable for all charges, levies, deposits, pre- payments forms of security and fees imposed on Assured Contact ("Imposed Fees") or the Customer as a result of Applicable Laws relating to the number, ranges or subsets allocated by Assured Contact to the Customer. The Customer must pay Assured Contact an equivalent amount in cleared funds prior to Assured Contact making payment of Imposed Fees.
8.7 All Charges due from the Customer to Assured Contact shall be calculated by reference to data logged or recorded by Assured Contact and not by reference to data logged or recorded by the Customer.
8.8 The Customer agrees to Assured Contact's initial and continuing credit approval procedures and policies. Assured Contact may withhold implementation of the Services pending a credit review and subject to conditions specified by Assured Contact, including security for payments (cash deposit, guarantee or other means).
8.9 Upon request by Assured Contact at any time, the Customer agrees to provide evidence of financial circumstances. If the financial circumstances become unacceptable at any time in Assured Contact's reasonable opinion, Assured Contact may require a new or increased security at Assured Contact's option. Failure by the Customer to provide the requested security within 5 days from the demand shall permit Assured Contact to suspend all or any portion of the Services and/or terminate this Agreement forthwith by written notice. Assured Contact shall be entitled to charge the Customer the cost of debt recovery agents used by Assured Contact in the event of non-payment of Charges by the Customer.
8.10 The Parties acknowledge that the nature of the Services set out in this Agreement is such that depending upon the volume, duration and number range type of Traffic passing over the Numbers, additional costs in addition to the Charges may be payable by the Customer to Assured Contact.
8.11 As soon as practicable after the end of a month, Assured Contact shall send the Customer a statement ("the Statement") based upon Assured Contact's Traffic records setting out:
8.11.1 the volume, duration and number range type of all Customer Traffic over numbers and/or the Numbers and/or Connection;
8.11.2 the estimated costs payable to Assured Contact by the Customer for Customer Traffic which has been passed over the Numbers and/or Connection.
8.12 The Customer agrees that Assured Contact acting reasonably when producing the Statement may use reasonable methods of approximation to allocate certain costs and revenues on a pro rata basis (based on usage of Services) between different customers of Assured Contact where the precise apportionment of those costs and revenues is not practical. In the absence of an error, the Statement will be deemed to be a conclusive record of the volume, duration and number range type of all Traffic over an interconnect.
8.13 If the Statement shows a balance payable to Assured Contact by the Customer, the Statement will be accompanied by an invoice from Assured Contact based upon the Statement. Notwithstanding anything else in the Agreement, this amount must be paid by the Customer to Assured Contact in accordance with the Statement.
8.14 The Customer acknowledges that a Statement may be retrospectively adjusted by Assured Contact if it is subsequently determined (whether by settlement mediation, arbitration or otherwise), between Assured Contact and the relevant third party network operator, that the costs set out in the Statement are different from the costs payable by Assured Contact to the third party network operator for Traffic which passed over the interconnect during the relevant period. If such an adjustment takes place, the Customer shall pay Assured Contact any additional amounts, or Assured Contact will refund any reduced amounts, within 7 days of the date of the Assured Contact invoice or credit setting out such amounts.
8.15 If Assured Contact reasonably suspects that the Customer Calls are AIT, Assured Contact shall be entitled (without liability) to suspend, withhold or cease to pay any Call Revenue Share due to the Customer in relation to the AIT notice or suspected AIT activity until such time as it determines the Customer Calls are not AIT.
8.16 Where a Minimum Traffic Commitment is applicable, in the event that the Customer fails to meet such applicable Minimum Traffic Commitment in any calendar month or other agreed period, the Customer shall pay to Assured Contact the Charges and/or Fees calculated as though (and on the basis that) the Customer had satisfied the Minimum Traffic Commitment for that calendar month or other agreed period using the Minimum Traffic Commitment agreed, based on the Charges prevailing at the time.
8.17 All amounts due under the Agreement for Services will be paid by the Customer to Assured Contact in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.1 The Customer acknowledges and agrees that Assured Contact and/or its licensors own all intellectual property rights in the Software and the Services. Save as expressly set out in this Agreement the Customer is not granted any rights to or in respect of any intellectual property rights in respect of the Services or Software.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
10.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2 was in the other party's lawful possession before the disclosure;
10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
10.1.4 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
10.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents.
10.4 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services and the terms of this Agreement, constitute Assured Contact's Confidential Information. Assured Contact acknowledges that the Customer Data is the Confidential Information of the Customer.
10.5 This clause 10 shall survive termination of this Agreement, however arising.
10.6 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed).
11.1 This clause 11 sets out the entire financial liability of Assured Contact (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement and/or the Services.
11.2 Except as expressly and specifically provided in this Agreement:
11.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer. Assured Contact shall have no liability for any loss or damage caused by or arising from errors or omissions in any information, instructions or scripts provided to Assured Contact by the Customer in connection with the Services;
11.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
11.3 Nothing in this Agreement excludes the liability of Assured Contact:
11.3.1 for death or personal injury caused by Assured Contact's negligence; or
11.3.2 for fraud or fraudulent misrepresentation.
11.4 Subject to clause 11.1 and clause 11.3, Assured Contact shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
11.4.1 any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss; or
11.4.2 for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
11.5 Assured Contact's total aggregate liability pursuant to this Agreement, including any indemnity under this Agreement, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the lower of: (a) the Liability Cap; or (b) the aggregate Charges paid by the Customer to Assured Contact under this Agreement.
12.1 If the Customer disputes the amount of any invoice, it shall notify Assured Contact as soon as is reasonably practicable and in any event within 15 Business Days of the date of the invoice, such notice identifying the relevant invoice, the reasons for dispute and attaching supporting data. The parties shall promptly investigate such dispute and use their reasonable endeavours to resolve it. If the dispute is not resolved within 15 days of notification the matter will be escalated to the Senior Managers (as defined in clause 12.5 of this Agreement) responsible from each Party.
12.2 If the dispute is not resolved within 10 days of escalation the matter may be referred by either Party to an arbitrator acting as an expert and not an arbitrator, such arbitrator to be agreed between the Parties or in default of agreement and at the request of either Party by the President for the time being of the Institute of Chartered Accountants of England and Wales.
12.3 Both Parties shall promptly comply with all reasonable requests of the arbitrator for information and assistance. The arbitrator's decision, in the absence of manifest error, as to the amount and the time of any invoice payment and the arbitrator's costs shall be final and binding on the parties. Any charge paid or repaid pursuant to the decision of the arbitrator shall have added to it interest from the original due date or date of payment, respectively.
12.4 Any undisputed amount paid or repaid pursuant to clause 12.2 shall have added to it Interest from the original due date or date of payment, respectively.
12.5 For the purposes of this clause 12 the Senior Manager(s) for the Customer and Assured Contact respectively are as set out during contract setup and within schedules and/or service orders further to this agreement.
13.1 Except where numbers are previously owned by the Customer, or have been ported in from third parties ('Customer Numbers'), the Customer hereby acknowledges that any Numbers allocated by Assured Contact to the Customer and used by the Customer and the End Users pursuant to this Agreement do not belong to the Customer or the End User and the Customer accepts that neither it nor its customers or End Users shall acquire any rights whatsoever in any such Numbers and the Customer shall make no attempt to apply for registration of the same as a trade or service mark whether on its own or in conjunction with some other words or trading style.
13.2 Assured Contact shall be entitled, for operational or technical reasons or in order to comply with any numbering scheme or other obligation imposed on Assured Contact by any competent authority, to withdraw or change any Numbers or code (or group thereof) allocated to or by the Customer. Assured Contact shall give the Customer the maximum period of notice in writing thereof practicable in the circumstances. Should numbers remain unused by a Customer for a period of 6 months, Assured Contact reserves the right to withdraw the numbers from the Customer's account for re-purposing and re-allocation by Assured Contact (to enable Assured Contact to procure responsible use of numbering resource).
13.3 Assured Contact numbers which may be allocated to the Customer as described in clause 13.1 shall be routed via the Assured Contact network for a minimum period of 12 months prior to any request by the Customer to export the number(s) to an alternative supplier being undertaken.
14.1 This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Agreement Date and shall continue for the Initial Term and, thereafter, shall automatically renew for successive periods of 12 months (each a "Renewal Period"), unless:
14.1.1 either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or before the end of any subsequent Renewal Period;
14.1.2 otherwise terminated in accordance with the provisions of this Agreement.
14.2 Without affecting any other right or remedy available to it, Assured Contact may terminate this Agreement with immediate effect by giving written notice to the Customer if:
14.2.1 the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
14.2.2 the Customer commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
14.2.3 the Customer repeatedly breaches any of the terms of this Agreement.
14.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
14.3.1 the other party goes into liquidation or a winding up petition is presented in respect of it (other than for the purpose of a solvent bona fide reconstruction) and such petition is not discharged within 7 days of its presentation; or
14.3.2 an order is made for the appointment of an administrator or documents are filed for the appointment of an administrator or notice of intention to appoint an administrator is given by such party, its directors or a qualifying floating charge holder; or
14.3.3 a receiver or administrative receiver is appointed over the whole or any part of the assets of such company or it proposes to enter or makes any arrangement or composition with its creditors or makes an application to a court for the protection of its creditors in any way, is otherwise unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) is the subject of any similar event in any jurisdiction;
14.3.4 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.3.5 the other party is the subject of any similar event in any jurisdiction.
14.4 On termination of this Agreement for any reason:
14.4.1 all licences and any other rights granted under this Agreement shall immediately terminate;
14.4.2 each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;
14.4.3 Assured Contact may destroy or otherwise dispose of any of the Customer Data in its possession unless Assured Contact receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Assured Contact shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all Fees and Charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Assured Contact in returning or disposing of Customer Data; and
14.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15.1 Assured Contact shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control ("Force Majeure Event"), including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Assured Contact or any other party), failure of a utility service or transport or telecommunications Network, Access Method, Connection, Network Providers or their respective services, 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 sub-contractors.
15.2 Assured Contact shall notify the Customer of any such Force Majeure Event and its expected duration as soon as practicable.
16.1 If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
16.2 No variation of this Agreement shall be effective unless it is in writing and signed by the parties.
16.3 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.4 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.5 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.6 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
17.3 The Customer hereby acknowledges and agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement made in this Agreement or prior to this Agreement.
17.4 The Customer hereby agrees that it is the Customer's responsibility to satisfy itself that the Services meet its requirements and are compatible with the infrastructure of its business.
18.1 The Customer shall not, without the prior written consent of Assured Contact, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
18.2 Assured Contact may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
19.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
20.1 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this Agreement.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
22.1 This Agreement may be executed in any number of counterparts. No counterpart shall be effective unless each party has executed and delivered at least one counterpart. The parties acknowledge that the Agreement may be executed by way of electronic signature via Docusign or other comparable electronic signature application process stipulated by Assured Contact.
23.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Subject matter of Processing - The Customer Personal Data to be processed by Assured Contact pursuant to the Agreement concerns the Services as set out in the Agreement.
Duration of the Processing - The Customer Personal Data to be processed under the Agreement shall be processed for the duration of the Agreement.
Nature and purposes of the Processing - The Customer Personal Data to be processed under the Agreement shall be processed for the following nature and purpose: for any related reasons under the direction of the Customer as relevant to provide the Services supplied under the Agreement.
Type of Personal Data - The Personal Data to be processed by Assured Contact pursuant to the Agreement concerns the following types of Personal Data:
Calling Line Identification (CLI) details;
Call details (time, duration);
Login / credentials;
System access / usage / authorisation data;
Cookies / IP addresses.
Customers of the Customer;
End users of the Services;
Employees and workers of the Customer and End Users;
Employees of the Customer's actual and potential customers including but not limited to distributors, customers, suppliers and providers;
Employees of the Customer's subcontractors, agents, consultants and other professional experts and other types of partners and providers.