1.1. In these Conditions the following terms shall have the meaning indicated:
1.2. “the Agreement” shall mean the contract between Penelope and the Customer to which these Conditions apply; “the Customer” shall mean the person, company or organisation to whom Penelope agrees to provide the Services in accordance with these Conditions; “Penelope” means Callitech Limited trading as “Penelope”, Company Number: 3894972 whose registered office is at Western Gateway, Wrexham, LL13 7ZB (and where the context requires shall include its successors assignees);“Retail Prices Index” the Retail Prices Index (all items, excluding mortgages) as published by the Office for National Statistics from time to time or failing such publication such other index as the parties may agree most closely resembles such index; “Services” means the services to be provided by Penelope to the Customer under the Agreement
1.3. Headings in these Conditions shall not affect their interpretation
1.4. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6. A reference to writing or written includes faxes and e-mail.
1.7. Any obligation in the Agreement on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.8. References to these Conditions are to the conditions of the Agreement.
2. SCOPE OF CONDITIONS
2.1. These Conditions shall apply to and be incorporated into the Agreement; and
2.2. These Conditions shall prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.3. The commencement of the provision of the Services by Penelope (including provision during any trial period) constitutes an offer by Penelope to supply the Services in accordance with these Conditions and the Customer agreeing to use the Services constitutes acceptance of these Conditions The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Agreement.
3. PENELOPE’S DUTIES
3.1. Penelope’s duties to the Customer shall consist of the provision of the Services to include the receiving of incoming telephone calls intended for the Customer and the dispatch to the Customer of such calls to their appropriate location. If required Penelope will process messages or voicemail on behalf of the Customer.
3.2. In the event that items and/or materials other than agreed parcels/letters addressed to the Customer are delivered to Penelope’s address, Penelope shall bear no responsibility to the sender, the Customer or any third party and Penelope reserve the right to dispose of such items and/or materials as it thinks fit.
3.3. Penelope undertakes not to use the Customer’s address in publicity materials, publications or products without the prior written consent of the Customer.
The Customer undertakes not to use Penelope’s address in publicity materials, publications or products without the prior written consent of Penelope.
5. DURATION & TERMINATION
5.1. Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other in accordance with this Clause ‘5’ or immediately on giving notice to the other if:
5.1.1. the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
5.1.2. the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
5.1.3. the other party repeatedly breaches any of the terms of the Agreement or conducts itself in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement; or
5.1.4. the other party commences negotiations with its creditors, appoints an administrator or receiver or suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply.
5.1.5. The Customer must give one month’s notice from the date of the next invoice for any termination.
5.2. On termination of the Agreement for any reason:
5.2.1. the Customer shall immediately pay to Penelope all of Penelope’s outstanding unpaid invoices and interest and in respect of Services supplied but for which no invoice has been submitted Penelope may submit an invoice, which shall be payable immediately on receipt;
5.2.2. the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
6. CHARGES PAYMENT AND INTEREST
6.1. Unless otherwise agreed in writing by Penelope all sums due to Penelope under the Agreement, as detailed in Schedule 1, shall be payable immediately on the monthly anniversary of the contract.
6.2. Penelope will process payment by the agreed means and make available for viewing or download on the Penelope website a copy of an invoice or provide the customer an invoice electronically.
6.3. All charges under the Agreement shall be subject to VAT at the prevailing rate.
6.4. The parties agree that Penelope may review and increase the charges for the Services. Penelope will give the Customer 30 days written notice of any such increase.
6.5. Without prejudice to clause 6.3 Penelope shall increase the charges for the Services on an annual basis in line with the percentage increase in the Retail Prices Index in the preceding twelve month period.
The Customer undertakes to provide Penelope with all information and co-operation that Penelope reasonably requires to enable Penelope to perform the Services and to observe its obligation under the Agreement.
8. DIVERSION FACILITY
8.1. If the Customer is diverting its existing telephone calls to the Penelope service, it is the Customer’s responsibility to ensure that the divert facility is properly set-up by their network provider to ensure that the respective call traffic is directed to the appropriate Penelope telephone number.
8.2. It is the Customer’s responsibility to ensure that all medium or means required to receive communications is fully operational
9. EQUIPMENT AND SOFTWARE
9.1. All software and hardware in whatever form provided by Penelope for the purpose of providing the Services remains the property of Penelope. Penelope grants the Customer a non-exclusive, non-transferable licence to any such software for the purpose of using the Service and for no other purpose. The Customer shall not reproduce the software, shall keep it in confidence and shall not modify it.
9.2. The Customer acknowledges that, where Penelope does not own the software or hardware supplied, the Customer’s use of rights is conditional on Penelope obtaining a written licence or sub-licence from the relevant licensor on such terms as will entitle Penelope to licence such rights to the Customer.
10. DATA AND CALL MONITORING
10.1. Without prejudice to any other rights or remedies which the parties may have, subject to clause 10.6 information about individual clients and their employees is kept strictly confidential in accordance with the Data Protection Act 1998
10.2. All information disclosed by and/or relating to (i) the Customer and its directors, employees, contractors and consultants, and (ii) any person or organisation from whom Penelope receives a telephone call, facsimile or e-mail for or on behalf of the Customer (a “caller”), will be treated as strictly confidential and not disclosed to any person, expect to such of the Customer’s directors, employees, contractors and consultants as the Customer may notify to Penelope from time to time:
10.3. “Information” includes (without limitation) (i) the name, company, firm or organisation, telephone number and other personal and contact details of the caller, (ii) the nature and content of the call, facsimile or e-mail (including any attachments to the facsimile or e-mail , and any messages or voicemails left by the caller), and (iii) the existence of the call, facsimile or e-mail; whether disclosed, recorded or stored verbally, in writing, electronically, or by any other means;
10.4. Penelope will process all “personal data” (as defined in the Data Protection Act 1998) relating to the Customer, the Customer’s directors, employees, contractors and consultants, and callers strictly in accordance with the Data Protection Act 1998. For the purposes of this agreement, “process” will include (without limitation) the collection, recording, storage and disposal of personal data; and
10.5. In the event that Penelope breaches any or all of the above mentioned provisions, the Customer reserves the right to terminate the agreement forthwith without notice to Penelope.
10.6. The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Penelope in connection with the Services.
10.7. Calls may be monitored or recorded but only for training purposes.
Penelope, in consultation with the Customer and only by giving one months notice in writing, shall have the right to assign, sub-contract or otherwise delegate all or any of its rights and obligations under the Agreement.
12. OFFERS OF EMPLOYMENT
12.1. For the duration of this Agreement and for a period of 6 months after its termination, neither party shall, without the prior written consent of the other, solicit the employment of any person employed by the other party in the course of developing, supplying, maintaining or supporting the Product(s) or any part of it.
13.1. This Condition 13 sets out the entire financial liability of Penelope (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
13.1.1. any breach of the Agreement including any deliberate personal repudiatory breach OR any deliberate breach of this Agreement by Penelope, or its employees, agents or subcontractor;
13.1.2. any use made by the Customer of the Services, or the equipment that has been supplied to the Customer under the terms of this Agreement or any part of them; and
13.1.3. any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Agreement.
13.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
13.3. Nothing in these Conditions limits or excludes the liability of Penelope:
13.3.1. for death or personal injury resulting from negligence; or
13.3.2. for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Penelope; or
13.4. Subject to condition 13.2 and condition 13.3:
13.4.1. Penelope shall not be liable for: loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss of information; or any special, indirect, consequential or economic loss, costs, damages, charges or expenses.
13.4.2. Penelope’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the agreement shall be limited to an amount equal to the last monthly invoice for the Services used by the Customer.
Penelope shall treat all messages as confidential. However, should Penelope be served with an appropriate order or warrant Penelope shall disclose such information as required by law.
15. FORCE MAJEURE
15.1. Neither party shall be liable for failure to perform obligations, if under the Agreement, that failure results from any circumstances beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the work force of Penelope or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake or default of suppliers or subcontractors, provided it:
15.1.1. has taken all reasonable steps to prevent and avoid the Force Majeure Event:
15.1.2. takes all reasonable steps to overcome and mitigate the effects of the Force Majeure event as soon as reasonably practicable:
15.1.3. on becoming aware of the force Majeure Event, promptly informs the other party in writing of the Force Majeure event, the known or anticipated impact of the Force Majeure Event and with a reasonable estimate of the period during which the Force Majeure Event will continue:
15.1.4. as soon as is reasonably practicable after becoming aware of the Force Majeure event, such party provides written confirmation and reason able evidence for the Force Majeure event to the other party and:
15.1.5. notifies the other party when the Force Majeure Event has concluded.
16. CUSTOMER’S OBLIGATIONS
16.1. The Customer shall co-operate with Penelope in all matters relating to the Services
16.2. The Customer shall: provide such information as Penelope may reasonably request and the Customer considers reasonably necessary, in order to carry out the Services in a timely manner and ensure that it is accurate in all material respects;
16.3. The Customer shall at all times indemnify and hold harmless Penelope from and against any and all claims demands proceedings, damages, penalties, costs, losses, liabilities and expenses of any kind, threatened, claimed or awarded against or otherwise incurred by Penelope arising out of or in connection with the Transfer of Undertakings (Protection of Employment) Regulations 2006 as a result of the provision of the Services or otherwise.
17. ENTIRE AGREEMENT
17.1. The Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
17.2. Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than for breach of contract.
17.3. Nothing in this condition shall limit or exclude any liability for fraud.
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
19.1. A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
19.2. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
20.1. Any notice or other communication required to be given under the Agreement shall be in writing and shall be delivered personally, or sent by e-mail, pre-paid first-class post, recorded delivery or by commercial courier to the other party at the address specified by the relevant party by notice in writing to the other party.
20.2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address for the party or, if sent by e-mail, pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
20.3. This Condition 20 shall not apply to the service of any in any proceedings or other documents in any legal action.
21. GOVERNING LAW
This agreement shall be interpreted with English Law and both parties agree to be bound by the jurisdiction of the English Courts.
Your calls, everywhere
MONEYPENNY, WESTERN GATEWAY, WREXHAM, LL13 7ZB
0333 20 21 020
Callitech Limited trading as Penelope. Registered in England 3894972
VAT Registration Number 974 871957