Usomo – Terms of Service
YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 18 (LIMITATION OF LIABILITY).
1. About us
1.1 Company details. Pebbletree Limited (company number 05587730) (we and us) is a company registered in England and Wales and our registered office (and main trading address) is at Suite 1E North Sands Business Centre, Liberty Way, Sunderland, Tyne and Wear, SR6 0QA. Our VAT number is 897645845. We operate the websites: http://pebble-tree.co.uk; http://soho66.co.uk; http://www.quvu.co.uk; http://www.usomo.co.uk and https://simply66.co.uk.
1.2 Contacting us. To contact us telephone our customer service team at 03333 441 441 or email support@usomo.co.uk. How to give us formal notice of any matter under the Contract is set out in clause 23.
2. Our contract with you
2.1 Our contract. These terms and conditions including the schedules to them (Terms) apply to the order by you and supply of any goods or services by us to you in relation to, or otherwise associated with the provision by us, of our “Usomo” communications service (Contract). You should read them carefully and make sure that you understand them before ordering any goods or services from us. They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Please click on the terms acceptance button during the ordering process if you accept these Terms; if you refuse to accept them, you will not be able to order any goods or services from us.
2.2 Business use. Our “Usomo” service provides communications services and is intended only for internal use in the normal and reasonable course of your business (Permitted Purpose). In the unlikely event that you do purchase goods or services from us as a consumer, you have a statutory right to cancel a Contract within 14 days of your order. In any event, if you use the Services for anything other than the Permitted Purpose, we may (at our sole option and without liability) either suspend the Services immediately and offer you (subject to agreeing the charges and other terms of service with you) an alternative communications service, or terminate the Services immediately and refund to you any amounts paid for Services which have not been received, less deduction for any reasonable administrative and other charges which we incur as a result of the termination.
2.3 Entire agreement. Each Contract is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.4 Your copy. Our company is constantly evolving; therefore we reserve the right to change these Terms from time to time, so every time you wish to order goods or services from us, please check these Terms to ensure you understand the terms which will apply at that time. You should also print a copy of these Terms or save them to your computer for future reference.
3. Placing an order and its acceptance
3.1 Placing your order. Please follow the onscreen prompts to place an order. You may only submit an order using the method set out on our website at http://usomo.co.uk (Our Website). Each order is an offer by you to buy the services (Services) and/or goods (Equipment) specified in the order, subject to these Terms.
3.2 Correcting input errors. Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate.
3.3 Acknowledging receipt of your order. After you place an order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will only take place as described in clause 3.4.
3.4 Accepting your order. Our acceptance takes place in the case of your order for:
(a) Equipment, when we send you an email which confirms that some or all of the Equipment ordered has been dispatched (Dispatch Confirmation), but a Contract between us for the supply of that Equipment (Equipment Contract) will only be formed when we send you the Dispatch Confirmation and will only relate to the Equipment confirmed in that Dispatch Confirmation; or
(b) Services, when we send you an email which confirms that we accept your order (Services Order Confirmation), at which point and on which date (Commencement Date) a Contract for the supply of those Services (Services Contract) between us will come into existence, but the Services Contract will only relate to those Services confirmed in the Services Order Confirmation; or
(c) a combination of Equipment and Services, your order for the relevant Equipment and/or Services will only be accepted (as the case may be) when we send a Dispatch Confirmation and/or Services Order Confirmation, and in either case the Equipment Contract and/or Services Contract will only relate (as the case may be) to the Equipment confirmed on the Dispatch Confirmation and/or the Services confirmed in the Services Order Confirmation.
3.5 If we cannot accept your order. If we are unable to supply you with any Equipment or Services for any reason, we will inform you of this by email and we will not process your order. If you have already paid for any Equipment or Services, we will refund you the full amount as soon as possible on any Equipment or Services which we have informed you we are unable to supply (including any delivery costs charged for Equipment which has not yet been delivered).
4. Our Equipment and Services
4.1 Descriptions and illustrations. We provide the goods and services described on Our Website. Any descriptions or illustrations on Our Website are published for the sole purpose of giving an approximate idea of the goods and services described in them. They will not form part of the Contract or have any contractual force.
4.2 Images of the Equipment. The images of the Equipment on Our Website are for illustrative purposes only. Although we have made reasonable efforts to display the colours accurately, we cannot guarantee that your computer's display of the colours accurately reflects the colour of the Equipment. The colour of your Equipment may vary slightly from those images. The packaging of your Equipment may vary from that shown on images on our site.
4.3 Compliance with specifications. Subject to our right to amend specifications (see clause 4.5), we will supply the Services to you in accordance with the specification for the Services appearing on Our Website at the date of your order in all material respects (Services Specification).
4.4 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill and in accordance with these Terms. We will use our reasonable endeavours to ensure that the Services are available to you in accordance with the Services Specification, but we cannot guarantee that:
(a) your use of the Services will be error free or without interruption; and/or
(b) the information obtained by you through the Services will meet your requirements and/or those of your customers;
(c) there will be no delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
(d) any software or services provided by us are provided “as is” and as available. We exclude, and you waive, any and all warranties, representations, terms and conditions (to the extent that they may lawfully be so excluded) implied by law or by custom or trade practice in respect of the provision of such software or services.
4.5 Changes to specifications. We reserve the right to amend specifications if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Equipment or (as the case may be) Services, and we will notify you in advance of any such event.
4.6 Time for performance. We will use our reasonable endeavours to meet any performance or delivery dates specified in the Dispatch Confirmation and/or (as the case may be) the Services Order Confirmation, but any such dates are estimates only and failure to deliver the Equipment and/or perform the Services by such dates will not give you the right to terminate the Contract or to claim compensation.
4.7 Service suspension. We may suspend the Services at any time if we reasonably believe that you are using them for anything other than the Permitted Purpsose. If such suspension lasts or is to last for more than 7 days, we will notify you of the reason.
4.8 Service limitations. The Services may not offer all the features which you may expect from a traditional landline telephone service. They may occasionally be unavailable due to things outside of our control, for example power disruptions or failures of your internet service provider (ISP) or broadband connection. It may not always be possible to make 999/112 calls using the Services and you should always have an alternative means of contacting the emergency services available.
5. Return and refund of Equipment
5.1 Subject to clause 5.3, you may cancel an Equipment Contract (or some part of it) and receive a refund, if you notify us as set out in clause 5.2 within 7 days of the relevant Equipment being delivered to you. We reserve the right to charge a cancellation fee if an Equipment Contract (or some part of it) is cancelled in accordance with this clause.
5.2 To cancel an Equipment Contract (or some part of it), you must e-mail us at support@usomo.co.uk or contact our Customer Services team by telephone on 03333 441 441 or by post to our registered office address, quoting your order reference number. If you are emailing us or writing to us please include details of your order to help us to identify it. If you send us your cancellation notice by e-mail or by post, then your cancellation is effective from the date you send us the e-mail or post the letter to us. For example, you will have given us notice in time as long as you get your letter into the last post on the last day of the cancellation period or e-mail us before midnight on that day.
5.3 If you return Equipment to us under this clause 5 because it’s faulty or mis-described, we will refund the price of the returned Equipment. In all other cases, you may only return Equipment to us and receive a refund if: (1) it is returned to us within 7 days of delivery in an unopened, unaltered and otherwise re-saleable condition; and (2) we have authorised the return of the relevant Equipment by email, by issuing a returns authorisation number. Unless the Equipment is faulty or mis-described, you are responsible for any shipping costs when returning Equipment to us in accordance with this clause 5.3.
6. Delivery, transfer of risk and title
6.1 Once you have received a Dispatch Confirmation in relation to the Equipment, we will contact you with an estimated delivery date. Occasionally our delivery to you may be affected by an Event Outside Our Control. See clause 21 (Events outside our control) for our responsibilities when this happens.
6.2 Without prejudice to clauses 4.6 or 21, in most cases we will aim to ship Equipment which is in stock and ordered before 15:00 on a normal working day (Monday-Friday) on the same day. If your order is placed after this time (or during a weekend or bank or other public holiday), we will endeavour to ship it on the next normal working day and you should ordinarily receive your Equipment the next working day after it’s shipped.
6.3 We may deliver the Equipment by instalments. Any delay in delivery or defect in an instalment does not entitle you to cancel any other instalment.
6.4 Delivery is complete once the Equipment has been unloaded at the address for delivery set out in your order and the Equipment will be at your risk from that time.
6.5 You do not own the Equipment until we have received payment in full for it, including for all applicable delivery charges. If you become subject to any of the events referred to at clauses 20.1(c) – 20.1(e) before you own the Equipment (or we reasonably believe that you may become subject to any of them), we may require you to return the Equipment to us and, if you fail to do so promptly, we may enter any of your premises (and/or you will procure that we may enter any third party premises where the Equipment is stored) in order to recover it.
6.6 If we fail to deliver the Equipment, our liability is limited to the cost of obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the Equipment. However, we will not be liable to the extent that any failure to deliver was caused by an Event Outside Our Control, or because you failed to provide adequate delivery instructions or any other instructions, access or assistance that are relevant to, or otherwise required for, the supply of the Equipment.
6.7 If you fail to take delivery on our first attempt to deliver the Equipment, we will email you to request that you make (at your own cost) alternative arrangements for the collection and delivery of that Equipment (Delivery Notification). If the Equipment is not collected within 10 days pf the Delivery Notification, we may resell part, or all, of the Equipment still in our possession.
7. Cancelling a Services Contract and requesting a refund
7.1 Subject to this clause 7 and to the notice periods notified to you at the time of placing your order, you may cancel the Services at any time.
7.2 Cancellation of the Services can be done through the online portal or must be requested in writing before the last five working days of your current billing date, in which case you will only be liable for the remainder of the current billing period (including any call charges incurred during that month). If we receive a cancellation request later than 5 days before your billing date, you will incur charges for your next billing period. Acceptable written forms of cancellation request are: (1) by email to support@usomo.co.uk; or (2) by post, to our registered office.
7.3 A request for cancellation is only valid once we have confirmed acceptance of the request. We aim to respond to requests for cancellation within one (1) working day of receipt, but no request for cancellation will be deemed to be effective until we acknowledge receipt of it.
7.4 If your pre-payment for the Services covers a time beyond the date of cancellation, we will refund any remaining balance on your account which exceeds £2.00 (GBP) (but no refund will be issued if the balance is less than £2.00 (GBP)).
7.5 No refund will be given for internet domain dames once purchased from us, regardless of how long they are purchased for, or how long a term is left on the registration.
7.6 If you cancel a specific service with us (but not your whole account) any credits will not be transferred from one service to another, unless we agree to do so in writing.
7.7 We may have promotions from time to time. These promotions may have separate refund policies associated with them. In this event, we will clearly display these alongside the promotion.
7.8 We reserve the right to retain call credit, which is unused 12 months after activation. In this case, the call credit will be non-refundable.
8. Price of the Equipment, Tariffs for the Services and reporting information
8.1 In consideration of us:
(a) providing the Services, you must pay our service charges (Tariffs); and
(b) supplying Equipment, you must pay the price of the Equipment, in each case in accordance with this clause 8.
8.2 The price of the Equipment and the Tariffs at the point of order will be as quoted on Our Website at the time you submit your order. The Tariffs are calculated in accordance with the scale of rates published from time to time by us on Our Website. We will take reasonable care to ensure that the prices of Equipment and Tariffs are correct at the time when the relevant information was entered onto the system. However, please see clause 8.11 for what happens if we discover an error in the price of Equipment you ordered and/or in the Tariffs.
8.3 If you wish to change the scope of the Services after we accept your order, and we agree to such change, we may modify the Tariffs accordingly.
8.4 Prices for Equipment may change from time to time, but changes will not affect any order for Equipment you have already placed, or any Services in relation to which you have made a pre-payment.
8.5 Subject to clause 8.6, we may:
(a) at any time increase our Tariffs by giving you written notice, to take account of any increase in the cost to us of supplying the Services (including, but not limited to, any change in telecommunication operator rates for outbound calls) and such increased prices ruling at the date of supply of Services by us shall be substituted for the previous contract price, provided that any such increase shall be indexed in line with BT’s IPX rate card; and
(b) at any time after the first anniversary of the Commencement Date, increase the Tariffs by giving you not less than two months’ written notice, provided that:
(i) the increase shall not exceed a percentage equal to the percentage increase in the Retail Prices Index published by the Office for National Statistics (or its successor from time to time) for the period from the Commencement Date (in the case of the first increase) or the date on which the immediately-preceding increase came into effect in accordance with this clause (in the case of the second or any subsequent increase) up to the date of this notice; and
(ii) the increases shall be no more frequent than once in any 12-month period.
8.6 You may terminate the Contract on 30 days’ written notice to us if you do not accept any increase in the Tariffs notified to you in accordance with clause 8.5.
8.7 The number of minutes purchased through payment of the Tariffs are suppled on a month-by-month basis and any minutes not used in any particular month cannot be carried over into the next month.
8.8 If you make any advance payment in relation to the Services, we may retain any such payment (or part of it) if the Services in relation to which the advance payment was been made have not beed used within 12 months of the Commencement Date.
8.9 The price of Equipment and our Tariffs are exclusive of VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. Where VAT is payable in respect of some or all of the Services and/or the Equipment, you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Tariffs and/or price for the Equipment. However, if the rate of VAT changes between the date of an order for Equipment and the date of delivery of that Equipment, we will adjust the VAT you pay, unless you have already paid for the Equipment in full before the change in VAT takes effect.
8.10 The price of the Equipment does not include delivery charges. Our delivery charges are as advised to you during the check-out process, before you confirm your order.
8.11 We sell a large volume of Services and Equipment through Our Site. It is always possible that, despite our reasonable efforts, some of the Services or Equipment on Our Site may be incorrectly priced. We will normally check prices as part of our dispatch procedures so that if the correct price for the Services and/or Equipment is:
(a) less than the price stated on our site, we will charge the lower amount when dispatching the Equipment or providing the Services to you; and
(b) higher than the price state on our site, we will contact you in writing as soon as possible to inform you of this error and we will give you the option of: (1) continuing to purchase the Equipment or (as the case may be) receive the Services at the correct price; or (2) cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. However, if we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Equipment and/or Services and refund you any sums you have paid.
8.12 From the Commencement Date until the end of the Services Contract, you will make available to us on a daily basis such relevant information as we reasonably require to establish the name and password of each user of the Services and the resulting Tariffs due to us (Reporting Information). You will maintain and retain records of the Reporting Information throughout the Contract and for a period of six (6) years after its termination or expiry (Reporting Records). For the purpose of confirming the accuracy of the Reporting Information and any amounts due to us under the Contract, and your compliance with Clause 9.5, we may at our own cost (save as set out in clause 8.13) appoint a chartered accountant to audit and/or take copies of the Reporting Records, provided that: (a) we give you seven (7) days' prior written notice of any such audit; and (b) any such audit is conducted during reasonable business hours.
8.13 In the event that any audit in accordance with clause 8.12 reveals:
(a) that any password has been provided to an individual who we have not agreed is authorised to use the Services, then without prejudice to our other rights, you will promptly disable such passwords and we will not issue any new passwords to any such individual; or
(b) any underpayment, the amount of any such underpayment shall be paid by you to us on demand, together with interest pursuant to clause 9.4, and
if any such audit reveals that there has been an underpayment of more than five per cent (5%) of all sums reported by you to us (or which, but for such misreporting, would have been reported) in respect of the period the subject of such audit, you will on demand reimburse us for all costs and expenses incurred by us in connection with such audit.
9. How to pay
9.1 Payment for the Services and any Equipment ordered (and all applicable delivery charges) is (unless agreed otherwise with us in writing) in advance. In relation to any Services ordered, we will take your first payment upon acceptance of your order and will take subsequent payments monthly in advance. We will not charge the price of any Equipment ordered (or the applicable delivery charges) until we dispatch your Equipment.
9.2 You can pay for Equipment or Services using a debit card or credit card. We accept the following cards: Visa, Mastercard, Maestro, Amex, Discover, UTAP, JCB, Diners. Alternatively, you can pay the Services by direct debit and your designated bank account will be charged automatically each month. In either case you are required to have at least one valid credit or debit card registered on your online account at all times. We reserve the right to recover payment from this credit or debit card in the event that any invoice is not paid by you when due, regardless of which payment method the original invoice was billed under.
9.3 Electronic invoices are available to download from your online account. If you opt into the service, we will also send you electronic invoices by email within seven days of the beginning of the month following payment. For any failed or cancelled payments, a £20 administration fee will be levied.
9.4 If you fail to make a payment under a Contract by the due date, then, without limiting our rights and remedies under clause 20 (Termination), you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.4 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.5 You must pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Licence of software
10.1 Subject to:
(a) payment by you of the Tariffs; and
(b) compliance by you with the other terms and conditions of the Services Contract,
we grant to you a personal, limited, revocable, non-exclusive, non-transferable and non-assignable licence to use the software in the Service, in object-code form only (Software). This licence commences upon our provision of the Service to you and terminates immediately upon the expiration or termination of the Services Contract for whatever reason. Any attempt to sublicense, assign, or transfer any of the rights, duties or obligations under this licence is void and may result in termination of the Services Contract and licence. No other licences or rights to the Software are granted or implied.
10.2 Certain software we provide to you may contain third party software (Third Party Software), including open source software. Use of such Third Party Software may be governed by separate copyright notices and licences, which may be found or identified in documentation or on other media delivered with the Third Party Software and which are incorporated by reference into the licence granted pursuant to this clause 10. Notwithstanding any other terms in this clause 10, such provisions shall govern the use of Third Party Software. You agree to comply with the terms and conditions of all end user licence agreements accompanying any Software (including Third Party Software) or plug-ins to such Software distributed in connection with the Services. All end user licences shall terminate immediately on the date that the Services Contract expires or terminates.
10.3 You will not reproduce the Software and you will keep the Software in confidence. You will not undertake, cause, permit or authorise (to the extent that we cannot prohibit such acts by law) any modification, adaption, translation, reverse engineering, hacking, decompiling or disassembling of the Software or create any derivative work based on it, or merge or include the Software with or in any other software, or otherwise attempt to derive the source code from the binary code of the Software.
11. Your obligations and indemnity
11.1 It is your responsibility to ensure that:
(a) the terms of your order are complete and accurate;
(b) you co-operate with us in all matters relating to supplying the Equipment and performing the Services;
(c) you provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as we may reasonably require;
(d) you provide us with such information and materials we may reasonably require in order to deliver the Equipment and supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) you prepare your premises for the delivery of the Equipment and supply of the Services;
(f) you obtain and maintain all necessary licences, permissions and consents which may be required for the Equipment and/or Services before the date on which the Equipment is to be delivered and/or the Services are to start;
(g) you comply with all applicable laws and regulations (including health and safety laws) and such instructions as we may notify to you from time to time;
(h) you keep all of our materials, equipment, documents and other property (Our Materials) at your premises in safe custody at your own risk, maintain Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation; and
(i) any Equipment supplied to you is used for only for internal use by your business and is not used for any resale purposes.
11.2 Without prejudice to clause 6.7, if our ability to deliver the Equipment and/or perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 11.1 (Your Default) then:
(a) we will be entitled to delay delivery of the Equipment and/or suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from any obligation to deliver the Equipment and/or perform of the Services, in each case to the extent Your Default prevents or delays delivery of the Equipment and/or performance of the Services. In certain circumstances Your Default may entitle us to terminate the contract under clause 20 (Termination);
(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to deliver the Equipment and/or perform the Services; and
(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
11.3 You will not:
(a) do (or omit to do) anything which may put us or any member of our group in breach of any applicable legal or regulatory requirement (Applicable Law);
(b) access, store, distribute or transmit any virus, malware or other malicious code and/or any content or materials which: (a) infringes the intellectual property rights of any third party; (b) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (c) facilitates illegal activity; (d) depicts sexually explicit images; (e) promotes unlawful violence; (f) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (g) that is otherwise illegal or causes damage or injury to any person or property, and we reserve the right (without liability or prejudice to our other rights) to disable your access to the Services if you breach the provisions of this clause; or
(c) except as may be allowed by any Applicable Law and which is incapable of exclusion by agreement between the parties:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Our Materials (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(d) access all or any part of the Services and Our Materials in order to build a product or service which competes with the Services and/or Our Materials; or
(e) unless specifically authorised by us in writing, use the Services and/or Our Materials to provide services to third parties; or
(f) subject to clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Our Materials available to any third party except those of your employees, agents and independent contractors who are authorised by us to use the Services and Our Materials; or
(g) unless specifically authorised by us in writing, attempt to obtain, or assist third parties in obtaining, access to the Services and/or Our Materials.
11.4 You will defend, indemnify and hold us harmless against any claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with: (1) your use of the Services; and any breach of the provisions of clause 11.3, 17 or 19.
12. Services in UK and Ireland only and no international deliveries
12.1 Unfortunately, we do not deliver Equipment to, and are unable to perform the Services at, addresses outside the UK or Ireland.
12.2 You may place an order for Equipment or Services from an address outside the UK or Ireland, but this order must be for delivery of the Equipment and/or performance of the Services to an address in the UK or Ireland.
13. Manufacturer’s guarantee and our warranty for the Equipment
13.1 Some of the Equipment we sell to you comes with a manufacturer's guarantee. For details of the applicable terms and conditions, please refer to the manufacturer's guarantee provided with the Equipment.
13.2 The Equipment is intended for use only in the UK or Ireland. We do not warrant that the Equipment complies with the laws, regulations or standards outside the UK or Ireland.
13.3 We provide a warranty that on delivery and for a period of 12 months from delivery, the Equipment shall:
(a) subject to clause 4.1, conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
13.4 Subject to clause 13.5, if:
(a) you have permitted and taken all necessary steps to enable us to liaise with the relevant manufacturer’s technical support service to confirm the fault;
(b) you email us within a reasonable time of discovery that some or all of the Equipment does not comply with the warranty set out in clause 13.3;
(c) we are given a reasonable opportunity of examining the Equipment;
(d) we have provided you with a returns authorisation code; and
(e) if we ask you to do so, you return the Equipment to us at your cost,
we will, at our option, repair or replace the defective Equipment, or refund the price of the defective Equipment in full.
13.5 We will not be liable for breach of the warranty set out in clause 13.3 if:
(a) you make any further use of the Equipment after giving notice to us under clause 13.4;
(b) the defect arises as a result of:
(i) us following any drawing, design or specification supplied by you;
(ii) your failure to follow our instructions and/or any manufacturer’s instructions; or
(iii) fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(c) you alter or repair the Equipment without our written consent; or
(d) the Equipment differs from its description as a result of changes made to ensure it complies with applicable statutory or regulatory standards.
14. Complaints
14.1 If a problem arises or you are dissatisfied with the Services or any Equipment, we have a comprehensive complaints policy here.
14.2 If you are a business with 10 or fewer employees how a dispute may be handled through an independent Ofcom approved adjudication scheme can be found in our complaints policy.
15. Support services
15.1 We will use our reasonable endeavours to make the Services available.
15.2 In the event that a technical issue arises with the Services which you are unable to resolve, your technical team may contact a member of our product operations team by calling 03333 441 441 (or such other number as may be notified by us to you from time to time for such purposes) and we will use reasonable endeavours to resolve the issue.
16. Intellectual property rights
16.1 All intellectual property rights in or arising out of or in connection with the Services (including the Software and Our Materials) will be owned by us or (as applicable) the Software owner. Nothing in this Agreement transfers such intellectual property rights to you.
16.2 All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") used by us are and shall remain our exclusive property throughout the world. Nothing in this Agreement shall grant you the right or licence to use such marks.
16.3 You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.
17. Data Protection
17.1 For the purposes of this clause 17:
(a) Applicable Law means any law, enactment, regulation, regulatory policy, guideline, and requirement of any relevant authority (including good practice codes) applicable to a party and/or to any of the activities of a party (including activities of Customer using the Service);
(b) controller, processor, data subject, personal data, personal data breach, and appropriate technical and organisational measures shall have the respective meanings given to them in the applicable Data Protection Legislation;
(c) Data Protection Legislation means all Applicable Laws relating to the processing, privacy and/or use of personal data, as applicable to either party or the Services, including: (i) the GDPR; (ii) the Data Protection Act 2018; (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; (iv) any laws which implement any of the foregoing laws; (v) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing laws;
(d) GDPR means, as binding on either party or the Services: (i) the General Data Protection Regulation, Regulation (EU) 2016/679) (EU GDPR); or (ii) the General Data Protection Regulation, Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the Applicable Laws from time to time) (UK GDP”);
(e) processing in respect of any personal data, shall have the meaning given to it in the applicable Data Protection Legislation (and related expressions, including process, processed, and processes shall be construed accordingly);
(f) Protected Data means personal data received by us from you or on your behalf, or otherwise obtained in connection with the performance of our obligations under our Contract with you.
17.2 Each party must process personal data in compliance with the Data Protection Legislation. This clause 17 is in addition to, and does not relieve, remove or replace, the parties’ respective obligations under the Data Protection Legislation.
17.3 The parties acknowledge and agree that for the purposes of the Data Protection Legislation, you are the controller and we are the processor of the Protected Data. The scope, nature, purpose and duration of the processing of the Protected Data are set out in Schedule 2.
17.4 You must ensure that you have the legal right to disclose all Protected Data that you in fact disclose to us under or in connection with our Contract with you, and that the processing of that Protected Data by us for the purpose of providing our Services to you, and otherwise complying with our obligations under our Contract with you will not breach any provision of the Data Protection Legislation.
17.5 You must ensure that you have a lawful basis under the Data Protection Legislation, and all necessary appropriate notices in place, and (where applicable) that you have obtained all necessary valid consents, to enable lawful disclosure of the Protected Data to us for the purposes of our Contract with you.
17.6 Each party must implement and maintain appropriate technological and organisational measures, having regard to the state of technological development and the cost of implementing any measures, to protected the Protected Data against accidental loss or destruction of, or damage to, the Protected 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.
17.7 We will, in relation to any Protected Data:
(a) only process the Protected Data:
(i) to the extent necessary to provide the Services, or otherwise comply with its obligations under our Contract with you;
(ii) in accordance with your specific instructions (save where such instructions infringe the Data Protection Legislation, in which case we shall promptly notify you and will be entitled to suspend the provision of the relevant Services until you provide us with appropriate amended instructions which are not infringing); or
(iii) as required by the Applicable Laws;
(b) ensure that all our personnel who have access to and/or process the Protected Data are obliged to keep it confidential;
(c) not transfer any Protected Data outside of the United Kingdom unless such transfer complies with the requirements of the Data Protection Legislation;
(d) notify you without undue delay on becoming aware of any personal data breach affecting any Protected Data;
(e) at your cost, assist you in ensuring compliance with your obligations under the Data Protection Legislation in respect of security of processing, personal data breach notifications, data protection impact assessments, prior consultations with the Information Commissioner Office (or other relevant supervisory authority), and the fulfilment of your obligations to respond to complaints and requests from data subjects for exercising their data subject rights in respect of their Protected Data;
(f) comply with the duration of processing provisions set out in Schedule 2;
(g) unless otherwise provided in Schedule 2, on your written request, delete or return the Protected Data and its copies to you on expiry or termination of our Contract with you, unless and to the extent that required by the Applicable Laws to retain the Protected Data;
(h) complete and accurate records and information to demonstrate compliance with clauses 17.6 to 17.8 (inclusive); and
(i) at your cost, make available to you on request such information that is in our possession or control as is necessary to demonstrate your compliance with the obligations placed on us under clauses 17.6 to 17.8 (inclusive), and allow for and contribute to audits, including inspections, by your (or another auditor mandated by you) for this purpose (subject to a maximum of one audit request in any 12 months’ period).
17.8 This clause applies to any third-party processors of the Protected Data.
(a) You consent to out appointment of the third-party processors set out in Schedule 2 (Approved Third-party Processors).
(b) We may amend and update the list of Approved Third-party Processors by providing written notice to you of any proposed new third-party processor. You may notify us promptly in writing within 14 days after receipt of the our list if you have a reasonable basis for objecting to a new third-party processor. We will not appoint (or disclose any Protected Data to) that proposed third-party processor until reasonable steps have been taken to address your objections and until you have been provided with a reasonable written explanation of the steps taken.
(c) We confirm that we have entered or (as the case may be) will enter with any third-party processor into a written agreement incorporating terms which are substantially similar to those set out in clauses 17.6 to 17.8 (inclusive), and in either case which reflect the requirements of the Data Protection Legislation.
17.9 You acknowledge that if, as part of the Services, you will be transferring to us the personal data of data subjects based in the European Economic Area in relation to the offering of goods or services to such data subjects or the monitoring of their behaviour in the European Economic Area, and the EU Commission has not made an adequacy decision in respect of the United Kingdom, you (as the data controller) will be required under the EU GDPR to put in place appropriate safeguards in respect of such processing. Consequently, if requested by you, we will enter into appropriate EU Commission’s controller-to-processor Standard Contractual Clauses with you in respect of such processing.
17.10 You must indemnify us and keep us indemnified against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to data subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, the Information Commissioner Office or other competent supervisory authority) arising out of or in connection with any breach by you of your obligations under this clause 17.
18. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
18.1 Nothing in these Terms or in any Contract limits or excludes our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(e) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(f) or any other liability which cannot be limited or excluded by applicable law.
18.2 Subject to clause 18.1, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss or corruption of data, information, software or communications systems;
(d) loss of business opportunity, or agreements or contracts;
(e) loss of anticipated savings;
(f) loss of or damage to goodwill;
(g) failure to train your staff to use the Services securely and in accordance with our instructions, including any failure to monitor or otherwise ensure that your staff choose and use robust passwords and change such passwords regularly; or
(h) any indirect or consequential loss.
18.3 Subject to clause 18.1, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited in relation to:
(a) an Equipment Contract, to the price of the Equipment;
(b) a Services Contract, to 50% of the total Tariffs paid under the Services Contract; and
(c) an order for a combination of Equipment and Services, to the price of the Equipment in relation to the Equipment element, and to 50% of the total Tariffs paid under the Services Contract in relation to the Services element.
18.4 Except as expressly stated in these Terms, we do not give any representations, warranties or undertakings in relation to the Equipment and/or the Services. We will not be responsible for ensuring that the Equipment is suitable for your purposes. Any representation, condition or warranty which might be implied or incorporated into these Terms or any Contract by statute (including without limitation the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982), by common law or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
18.5 This clause 18 will survive termination of the Contract.
19. Confidentiality
19.1 We each undertake that we will not at any time during the Contract, and for a period of five years after its termination or expiry, disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by clause 19.2.
19.2 We each may disclose the other's confidential information:
(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 19; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
19.3 Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations under the Contract.
20. Termination
20.1 Without limiting any of our other rights, we may suspend the delivery of Equipment, the performance of Services, or terminate the Contract with immediate effect, by giving written notice to you if:
(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 7 days of you being notified in writing to do so;
(b) you fail to pay any amount due under the Contract on the due date for payment;
(c) you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986;
(d) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors other than for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or your solvent reconstruction;
(e) you apply to court for, or obtain, a moratorium under Part A1 of the Insolvency Act 1986;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up other than for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or your solvent reconstruction;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over your (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over your assets (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
(j) your creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in sub-clauses (c) to (j) above (inclusive);
(l) you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business; or
(m) your financial position deteriorates so far as to reasonably justify the opinion that your ability to give effect to the terms of this Contract is in jeopardy.
20.2 If we suspend the Services in accordance with clause 20.1(b), your account will be placed into “suspended status” and:
(a) your access to the Services will be temporarily suspended;
(b) you will be issued with a final reminder for all amounts due, which must be settled within 7 days of receipt;
(c) any telephone or fax numbers assigned to you as part of the Services will be temporarily retained on your account, pending settlement of the final reminder;
(d) if, within 10 days of receipt, the final reminder:
(i) isn’t settled in full – then we may close your account and re-assign any telephone or fax numbers assigned to you as part of the Services;
(ii) is settled in full – we reserve the right (without prejudice to our other rights and remedies under the Contract) to charge you a re-activation fee in order to recover our administration costs in relation to reinstatement of your access to the Services. In this event, we will only reinstate the Services when you have paid this re-activation fee in full.
20.3 On termination of the Contract:
(a) you must return all of Our Materials and any deliverables specified in your order which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you will be solely responsible for their safe keeping and must not use them for any purpose unconnected with the Contract;
(b) you must pay immediately all of our outstanding unpaid invoices and any interest due on them and, in respect of Services supplied but for which no invoice has yet been submitted, we will submit an invoice which will be payable by you immediately on receipt;
(c) we will suspend the use of any telephone or fax numbers or services on your account; and
(d) your licence to use the Software will terminate in accordance with clause 10.1.
20.4 Termination of the Contract will not affect your or our rights or remedies that have accrued as at termination.
20.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
21. Events outside our control
21.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
21.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control.
21.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 4 weeks. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services and/or supplying Equipment to you up to the date of the occurrence of the Event Outside Our Control.
22. Non-solicitation
22.1 You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of six months following termination of the Contract.
23. Communications between us
23.1 When we refer to "in writing" in these Terms, this includes email.
23.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
23.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt;
(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
(c) if sent by email, at 9.00 am the next working day after transmission.
23.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
23.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
24. General
24.1 Assignment and transfer. We may assign or transfer our rights and obligations under the Contract to another entity. You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
24.2 Variation. Any variation of the Contract only has effect if it is agreed in writing and signed by you and us (or our respective authorised representatives).
24.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
24.4 Severance. Each clause and paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining clauses and paragraphs will remain in full force and effect.
24.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
24.6 Further assurance. You will from time to time at your own cost do or procure the doing of all such acts and things, and execute or procure the execution of all such documents in a form reasonably satisfactory us, which we may reasonably require for the purpose of giving full effect to the Contract.
24.7 Governing law and jurisdiction. The Contract is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.
Schedule 1 – Usomo Services
1. Usomo VoIP Services, account security and credentials
(a) We will provide a facility for you to make and receive telephone calls through our “Usomo” service (VoIP Services) and will provide you and your authorised users with unique usernames and passwords (VoIP Credentials) for this purpose.
(b) You are responsible for ensuring that all VoIP Credentials are kept secure and cannot be obtained or used by anyone other than the users who are authorised under the Contract to use the VoIP Services; this includes preventing unauthorised access or use of any system used by The Customer on which their VoIP credentials are stored.
(c) You accept responsibility for all costs associated with any telephone call or fax made through the VoIP Services using any VoIP Credentials, regardless of whether you authorised any such costs being incurred.
(d) Your VoIP credentials are also accessible via our “Control Panel” after logging in you’re your account username and password (which are chosen by you). It is the your responsibility to ensure that account usernames and passwords cannot be accessed or used by any third parties, other than those users who have been authorised to use the Services.
(e) You accept responsibility for all costs associated with any call or fax made through our network using the VoIP Credentials.
2. Use and Security of the Services
(a) You agree that you will use the Services in accordance with all instructions that we notify to you from time to time and in accordance with any applicable laws and regulations.
(b) You are responsible for all activity and use of the Services and for any breaches of the Contract that may result. Any breach of security (for example, in connection with a username or password) must be notified to us immediately. To help avoid any unauthorised use of the Services, you must ensure that your staff are trained and are aware of the importance of choosing a robust password combination and to change their passwords regularly.
(c) You must ensure that the Services are not used, whether by you or by anyone else, for any unlawful or fraudulent purposes.
(d) You are responsible for all usage and charges on all devices and features. You will bear the risk of loss and assume all liability arising from any prohibited, unauthorised or fraudulent usage of the Services. Any such prohibited, unauthorised or fraudulent use will be a material breach of the Contract. You are responsible for securing all credentials used to access the Services.
(e) You will not be excused from paying any Tariffs on the basis that the calls were made fraudulently. If we discover fraudulent calls being made, you consent to us taking such actions as we deem reasonably necessary (including blocking access to particular calling numbers), without notice to you, to prevent such calls from taking place. You acknowledge and agree that we: (a) are under no obligation to investigate the authenticity of calls charged to your account; (b) are under no obligation to take action to prevent such calls from being made; and (c) are not liable for any fraudulent calls processed by us and billed to your account.
(f) If, at any time, the Services are affected or unavailable you will continue to be billed for the Services.
(g) We may terminate the Contract and your Service immediately upon written notice at any time without liability to you if any underlying arrangement between us and any other third party operator or supplier is terminated for whatever reason.
3. Use of the Forum
(a) The forum is provided by us as a supplement to our technical support through other channels. Any advice given on the forum does not necessarily represent the views of Pebbletree Ltd.
(b) Please be aware that any advice may or may not be relevant to your circumstances and that following advice on the forum is at your own risk. We accept no liability whatsoever for any outcome following advice taken from our forum pages.
(c) All posts will be subject to review and may be removed or edited at our discretion. Use of the forum may be withheld from you at our discretion.
(d) You may not post links to external sites using the forum.
4. Upload of Content
(a) Through various mechanisms, we may make available to you the ability to upload files and content to our systems. In uploading any content, you assert that you are the copyright owner for the content or that the content is classified as royalty free. Any violation of this clause will be considered grounds for termination of your Services.
(b) In any event, you agree to indemnify us against any claims against us by the copyright holder or any other party holding a legitimate interest.
Schedule 1 – Data Processing Particulars
Subject matter of the processing
The processing under our Contract with you applies to the personal data described in paragraph 4 below, which we may process on your behalf in connection with the provision by us to you of our "Usomo" cloud based VoIP call centre management solution.
Nature and purpose of the processing
We will process the personal data for the following purposes:
providing the Services to you; and
otherwise complying with our obligations under our Contract with you.
3. Duration of the processing
6 years from when the data provided/generated for traffic and payment data; and
6 years from the end of our relationship with you for all other data.
4. Categories of data subjects and types of personal data
| Categories of Data Subjects | Types of data |
|---|---|
| Authorised Users | name, email address, postal address, telephone number, order number, content of fax transmissions |
5. Approved Third-party Processors
| Identity | Country of location | Purpose of processing |
|---|---|---|
| Hardware providers | UK | Fulfilment of hardware orders |
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