1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
- Advance: the payment on account by the Customer to Pure IP stipulated in the Table or in accordance with clauses 7.4 or 7.5 below.
- Conditions: these terms and conditions as amended from time to time in accordance with clause 15.3.
- Contract: the Customer’s purchase order and Pure IP’s acceptance of it under clause 3 and these Conditions.
- Customer: the person, firm or company who purchases Services from Pure IP, details of which are set out in the Table.
- Customer’s Services Manager: the Customer’s manager for the Services appointed in accordance with clause 5.1(a).
- Deliverables: all products and materials developed by Pure IP in relation to the Services and/of provided by Pure IP to the Customer in any media, including, without limitation, manuals, software, computer programs, data, diagrams, reports and specifications (including drafts).
- Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- Pure IP: Pure IP Limited, a company registered in England and Wales with company number 05024088, the registered office of which is at The Granary, 113 Lavender Walk, London SW11 1JS.
- Rate Card: Pure IP’s current list of prices for its services as [set out in schedules 1 to 3].
- Services: the services to be provided by Pure IP under the Contract as particularised in the Table and in any Supplementary Order.
- Supplementary Order: any purchase order received by Pure IP from the Customer opting to purchase (on the terms set out in these Conditions and at the rate set out in the then-current Rate Card) services additional to those particularised in the Table.
- Table: the table of commercial terms at the head of these Conditions.
- VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Headings do not affect the interpretation of these Conditions.
1.3 Reference to a notice in writing does not include email unless so provided.
2. Application of conditions
2.1 These Conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 Any variation of the Contract shall be in writing and signed by or on behalf of the parties.
2.3 Contract for Services shall be for a term of 12 months, and shall renew automatically for further terms of 3 months unless terminated in accordance with clause 13 below or upon the expiry of 60 days from the service by either party on the other of a written notice of termination.
2.4 No order which has been acknowledged by Pure IP may be cancelled by the Customer, except with the agreement in writing of Pure IP and provided that the Customer indemnifies Pure IP in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Pure IP as a result of cancellation.
3. Effect of purchase order
The Customer’s purchase order constitutes an offer by the Customer to purchase the Services specified in it on the terms of these Conditions; accordingly, the execution and return of the acknowledgement copy of the purchase order form by Pure IP, or Pure IP’s commencement or execution of work pursuant to the purchase order, shall establish a Contract for the supply and purchase of those Services on these Conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.
4. Pure IP’s obligations
4.1 Pure IP shall use reasonable endeavours to meet the performance dates for delivery and installation specified in the Table and/or any Supplementary Order, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
4.2 The Services are not fault free and their delivery may be impaired by conditions or circumstances beyond Pure IP’s control. The Customer is entitled to the quality of service generally provided by a competent telecommunications service provider exercising reasonable skill and care.
4.3 Subject to clause 4.4, the telephone number or numbers allocated to the Customer shall not belong to the Customer. Pure IP shall cooperate with the transfer of numbers to another service provider in accordance with regulatory requirements. Subject thereto, a number shall be transferred to another service provider subject to the Customer having paid in full all payments due to Pure IP plus an administrative fee of £100.
4.4 In the event that the Contract is terminated by either party providing the other with 60 days’ written notice of termination in accordance with clause 2.3 and provided that the Customer has paid all sums due to Pure IP under the Contract, then the telephone number(s) allocated to the Customer shall be assigned to the Customer on the date of termination.
4.5 Pure IP may be obliged:
(a) (upon reasonable notice) to alter the Customer’s telephone number(s) or any other name, code or number associated with the Services for reasons beyond its control such as where requested to do so by a governmental or regulatory body;
(b) temporarily to suspend the Services (or any part of them) for operational reasons or in an emergency or for reasons of security; and/or
(c) to bar certain numbers from the Services on a temporary or permanent basis in order to prevent fraud or in circumstances where Pure IP would suffer a direct loss.
4.6 Pure IP or its agents may record or monitor some telephone calls, emails and any other communications between itself (or its agents) and the Customer for training and quality control and for Pure IP’s lawful business purposes.
4.7 Pure IP may at its discretion and without notice bar the Customer’s numbers from making calls (other than to the emergency services) if
(a) the Customer is in breach of clause 5.5 below;
(b) Pure IP has reasonable cause to suspect fraudulent use of the Services; and/or
(c) any of the Customer’s staff or representatives is persistently abusive, makes threats, repeatedly causes a nuisance or annoyance or otherwise acts illegally towards Pure IP’s staff or property.
4.8 The Customer will be obliged to pay an unbarring charge and, if applicable, a re-connection charge if the Services are reconnected after being temporarily barred or disconnected for the reasons stated in 4.6 above.
5. Customer’s obligations
5.1 The Customer shall:
(a) co-operate with Pure IP in all matters relating to the Services and appoint the Customer’s Services Manager, who shall have the authority to contractually bind the Customer on matters relating to the Services;
(b) provide in a timely manner such access to the Customer’s premises and data, and such office accommodation and other facilities, as is requested by Pure IP;
(c) provide in a timely manner such information as Pure IP may request, and ensure that such information is accurate in all material respects; and
(d) be responsible (at its own cost) for preparing the relevant premises for the supply of the Services and for providing a safe work environment for the staff of Pure IP visiting the Customer’s premises.
5.2 If Pure IP’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall be liable to pay to Pure IP on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to Pure IP confirming such costs, charges and losses to the Customer in writing.
5.3 The Customer shall not, without the prior written consent of Pure IP, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from Pure IP or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of Pure IP.
5.4 Any consent given by Pure IP in accordance with clause 5.3 shall be subject to the Customer paying to Pure IP a sum equivalent to 20% of the then current annual remuneration of Pure IP’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or sub-contractor.
5.5 The Customer shall not use the Services or permit any other person to use the Services:
(a) fraudulently, in commission of or in connection with a criminal offence, in breach of any law or statutory duty;
(b) to make a call or send a message or to take pictures or video or send, upload, download, use or re-use any material, which is offensive, abusive, indecent, inciting racial, religious or ethnic hatred or in breach of the intellectual property rights of any third party, defamatory, obscene or menacing, a nuisance or a hoax or in breach of any rights or privacy or otherwise unlawful;
(c) to cause annoyance, inconvenience or needless anxiety, as set out in the Communications Act 2003; and/or
(d) to send automated unsolicited communications and the Customer agrees to indemnify Pure IP against any damages or costs incurred as a result of any breach of this term.
6. Change control
6.1 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing. If that change is a request by the Customer for additional services and/or equipment, the Customer shall submit a Supplementary Order and the cost of provision of such services and/or equipment shall be as stipulated in the then-current Rate Card.
6.2 If either party requests a change to the scope or execution of the Services (other than a Supplementary Order), Pure IP shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to Pure IP’s charges arising from the change;
(c) the likely effect of the change on any delivery dates or deadlines; and
(d) any other impact of the change on the terms of the Contract.
6.3 If Pure IP requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
6.4 If the Customer wishes Pure IP to proceed with the change, Pure IP has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, particulars set out in the Table and/or any relevant Supplementary Orders and any other relevant terms of the Contract to take account of the change.
7. Charges and payment
7.1 The price for the Services shall be the amount set out in the current Rate Card. Each month Pure IP shall invoice the Customer for the charges that are then payable, together with VAT, and interest where appropriate, calculated as provided in these Conditions.
7.2 The total price shall be paid to Pure IP (without deduction or set-off) within 30 days of the date of Pure IP’s invoice. Should the Customer have any dispute or query in relation to any Pure IP invoice the Customer shall notify Pure IP thereof in writing within 21 days of receipt of the said invoice, failing which the Customer shall be deemed to have accepted the accuracy of the invoice and its liability for the full charges set out therein.
7.3 Unless the Table provides that the level of the Advance is set at nil, the Customer shall pay the Advance before Pure IP provides any Services. The Customer shall pay each invoice submitted to it by Pure IP in full, and in cleared funds, within 30 days of the date thereof. In addition to paying for Services in respect of the period covered by the invoice, the Customer upon payment of every invoice (until the Contract has been duly terminated in accordance with these conditions) shall also restore the Advance held by Pure IP to the level stipulated in either the Table or Pure IP’s notice pursuant to clause 7.4 below.
7.4 Pure IP may at any time by service of a notice in writing (including email) on the Customer stipulate that
(a) the payment required by way of Advance shall be increased forthwith to the full cost for one month of each of the services requested by the Customer plus the full unpaid balance of the cost of the Equipment (at the costs set out in the Rate Card); and /or
(b) the provision or the continuation of Services is conditional upon the Customer authorising and maintaining a direct debit authority at its bank for the payment of charges and Advances.
7.5 The Customer may at any time by service of a notice in writing (including email) on Pure IP opt to convert any of its Services to a prepaid basis, in which event from the beginning of period covered by the next invoice the prepaid rates on the Rate Card shall apply provided that the Advance paid to Pure IP in respect of that Service has been increased to the level stipulated on the Rate Card.
7.6 Pure IP may at any time by service on the Customer of 30 days notice in writing (including email) revise or replace the Rate Card. In the event that charges are increased the Customer may exercise its option pursuant to sub-clause 2.3 above to terminate the Contract.
7.7 Without prejudice to any other right or remedy that Pure IP may have, if the Customer fails to pay Pure IP all amounts due in accordance with these conditions on the due date Pure IP may:
(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. Pure IP may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
(b) decline to cooperate with the porting of numbers to another carrier; and
(c) suspend all Services until payment has been made in full.
7.8 Time for payment shall be of the essence of the Contract.
7.9 Pure IP may apply any Advances received from the Customer against any liability of the Customer to Pure IP.
7.10 All payments payable to Pure IP under the Contract shall become due immediately on termination of the Contract, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.11 Pure IP may, without prejudice to any other rights it may have, set off any liability of the Customer to Pure IP against any liability of Pure IP to the Customer.
7.12 Pure IP may, without prejudice to any other rights it may have, set off any Pure IP invoices to the Customer and/or Pure IP charges incurred with third parties on behalf of the Customer against any revenue and/or charges collected by Pure IP on behalf of the Customer including (without limitation) monies collected on a revenue sharing basis.
8. Credit Checks and Disclosure
8.1 The Customer agrees that Pure IP may search the files of credit reference agencies and acknowledges that such agencies will keep a record of that search. Pure IP may also carry out identity and anti-fraud checks with fraud prevention agencies. Pure IP and other organisations may access and use from other countries the information recorded by fraud prevention agencies. If the Customer gives Pure IP false or inaccurate information and Pure IP identifies or suspects fraud, Pure IP will record this.
8.2 Details of how the Customer conducts its account may be disclosed to credit reference agencies, law enforcement agencies and other telecommunications companies. The information may be used by Pure IP and other parties in assessing applications for and making decisions about credit, credit-related services or other facilities and insurance and for debt tracing, debt recovery, credit management and crime, fraud and money laundering detection and prevention. Information may be used by Pure IP and other parties for checking the Customer’s identity, checking details of job applicants and employees, statistical analysis about credit, insurance, fraud and to manage the Customer’s account and insurance policies. Pure IP may also perform subsequent searches for the purpose of risk assessment, debt collection and fraud prevention with one or more credit reference agencies and/or fraud prevention agencies whilst Customer retains a financial obligation to Pure IP.
8.3 The Customer authorises Pure IP to use and disclose, in the UK and abroad (both inside and outside the EEA), information about the Customer and the Customer’s use of the Services including phone numbers and/or email addresses of calls, location data (where available) in respect of mobile phones, texts and other communications (“Communications“) made and received by Customer and the date, duration, time and cost of such Communications, and information about how the Customer conducts the Customer’s account for the purposes of operating the Customer’s account and providing Customer with the Services, for credit control purposes, fraud and crime detection and prevention and the investigation and prevention of civil offences or as required for reasons of national security or under law to Pure IP’s associated companies, partners or agents, any telecommunications company, debt collection agency or credit reference agency and fraud prevention agency or emergency services or governmental agency and other users of these agencies who may use this information for the same purposes as Pure IP. The Customer can obtain further details of Pure IP’s intended use of such data from Pure IP’s public registration held by the Information Commissioner.
8.4 The Customer may request details of the credit reference or the fraud prevention agencies from whom Pure IP obtains and with whom Pure IP records information about the Customer or a copy of the information Pure IP holds about the Customer. Pure IP will charge a fee for the provision of such details or information.
9. Data Protection
9.1 The parties will take such technical and organisational measures against unauthorised or unlawful processing of such data and information and against accidental loss or destruction of, or damage to, such data and information as are appropriate to that party as data controller or data processor (as defined in the Data Protection Act 1998).
9.2 Pure IP:
(a) undertakes that it will comply, and will cause its employees, agents and sub-contractors to comply, with the Data Protection Act 1998 and all applicable data protection laws (Data Protection Requirements) in connection with the performance of its obligations under this agreement; and
(b) confirms that it will only seek to transfer such information to its business contacts outside the EEA in circumstances that satisfy one of the conditions set out in Schedule 4 of the DPA.
9.3 The Customer undertakes that it will comply, and will cause its employees, agents and sub-contractors to comply, with the Data Protection Requirements in connection with the performance of its obligations under this agreement.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights and all other rights in the Deliverables shall be owned by Pure IP. Pure IP hereby licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If Pure IP terminates the Contract under clause 13.1, this licence will automatically terminate.
10.2 The Customer acknowledges that the Customer’s use of rights in third party materials is conditional on Pure IP obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Pure IP to license such rights to the Customer.
11. Confidentiality and Pure IP’s property
11.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Pure IP or its agents, and any other confidential information concerning Pure IP’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Customer’s obligations to Pure IP, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
11.2 All materials, equipment and tools, drawings, specifications and data supplied by Pure IP to the Customer shall at all times be and remain the exclusive property of Pure IP, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Pure IP, and shall not be disposed of or used other than in accordance with Pure IP’s written instructions or authorisation.
11.3 This clause 11 shall survive termination of the Contract, however arising.
12. Limitation of liability
12.1 The following provisions set out the entire financial liability of Pure IP (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these conditions excludes the liability of Pure IP:
(a) for death or personal injury caused by Pure IP’s negligence; or
(b) for fraud or fraudulent misrepresentation.
12.4 Subject to clauses 12.2 and 12.3:
(a) Pure IP shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
(i) loss of profits;
(ii) loss of business;
(iii) depletion of goodwill or similar losses;
(iv) loss of anticipated savings;
(v) loss of goods;
(vi) loss of contract;
(vii) loss of use;
(viii) loss or corruption of data or information; and/or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) Pure IP’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 Contract shall be limited to the price paid for the Services.
13.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
(a) the other party commits a material breach of the Contract 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;
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party;
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt;
(f) the other party ceases, or threatens to cease, to trade;
(g) there is a change of control of the other party; and/or
(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.2 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
14. Force majeure
Pure IP shall have no liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Pure IP or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Pure IPs or sub-contractors.
15. Waiver and Variation
15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
15.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.3 Except as set out in these Conditions, no variations of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Pure IP.
16.1 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 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. Status of pre-contractual statements
Each of the parties acknowledges and agrees that in entering into the Contract 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 the Contract.
18.1 The Customer shall not, without the prior written consent of Pure IP, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
18.2 Pure IP 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 the Contract.
19. No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. Third party rights
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
Any notice under the Contract 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 as set out in the Contract, 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 the Contract. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 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). A notice sent by email (where specifically provided in these conditions as a permissible form of notice) shall be deemed to have been received two hours after the time of transmission.
22. Governing law and jurisdiction
22.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.
22.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).