(A) Direct Numbers, a trading style of Go Telecom Limited, provides a range of Long Number Services to customers.
(B) Direct Numbers wishes to provide and the Customer wishes to purchase the Long Number Services under the terms and conditions of this Agreement.
IT IS AGREED as follows:
1.1 In this Agreement unless the context requires otherwise, the following phrases shall have the meanings laid out alongside them:
|Agreement||this Agreement between Direct Numbers and the Customer comprising the Order Form, these Definitions, Terms and Conditions and the Appendices hereto as amended from time to time in accordance with the terms of this Agreement;|
|Business Day||any day which is not a Saturday, Sunday or a public holiday in England;|
|Code||the 12th code published by PhonePay Plus, provided that where such code is replaced, update or amended from time to time, Direct Numbers shall be entitled to make any variations to this Agreement as is necessary to ensure compliance with the Code or any other rules or regulations imposed by PhonePay Plus;|
|Confidential Information||has the meaning set out in Clause 6.1;|
|Connection Fee||means the connection fee for each Long Number as detailed in the Order Form;|
|Customer's Service||the provision of a Long Number by the Customer to End Users;|
|End Users||an individual user who dials a Long Number;|
|End User Data||any personal data (as such expression is defined in the Data Protection Act 1998 as amended and replaced from time to time) and related information in respect of an End User including, without limitation, name, contact details, comments and information relating to or any enquiries by or regarding such End User in respect of the Customer's Service."|
|Fees||all and any fees payable by the Customer to Direct Numbers including the call usage charges as set out in Appendix A, the Rental Fee and the Connection Fee;|
|IPR||all copyright and other intellectual property rights howsoever arising and in whatever media, whether or not registered, including, without limitation, patents, trade marks, service marks, trade names, registered designs, database rights, domain names, moral rights, performer's rights, and any application for the protection or registration of these rights and all renewals and extensions thereof throughout the world;|
|Legislation||any statute or statutory provision including any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same, and shall also include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision or other statute and any current notices, guidance and codes of practice issued by any Regulatory Body or Network(s) and any updates thereto from time to time. For the avoidance of doubt, the Customer acknowledges that it must comply with the provisions of the 11th Code, published by PhonePay Plus until 1 September 2011, after which it must ensure compliance with the 12th Code;|
|Liability Period||the 12 month period commencing on the Start Date (or part thereof) and each subsequent period of 12 months commencing on the anniversary of the Start Date thereafter (or part thereof);|
|Long Number||a long number beginning 01, 02, 03, or 08 which is not a Premium Long Number;|
|Long Number Service||the provision of Long Numbers by Direct Numbers to the Customer as described at Clause 2.5 and/or the Premium Long Numbers as described in Clause 2.1 of Appendix C being the "Premium Rate Service";|
|Network(s)||an operator of any public network electronic communication system;|
|Notified Email Address||The Customer's email address|
|OFCOM||the Office of Communications or such other body which may replace it;|
|Order Form||Direct Number's prescribed order form for the Long Number Service in force from time to time the current version of which is set out in Appendix B as updated and amended by Direct Numbers from time to time;|
|Phonepay Plus||the UK regulatory body responsible for the regulation of premium rate telephony services;|
|Premium Rate Long Number||
a long number;
i. beginning with 09; or
ii. beginning with 0870 / 0845 / 0843 / 0844 / 0871/2/3where such number is to be used for:
a. an SES; or
b. a chatline service; or
c. in conjunction with internet dialler software;
the definitions of such services to be as set out in the Code.
iii. which is deemed to be a premium rate number or which falls under the regulation of PhonePay Plus;
|Premium Rate Terms and Conditions||the terms and conditions set out in Appendix C;|
|Rates||the call rates charged by Direct Numbers in respect of each Long Number as set out at Appendix A;|
|Regulatory Bodies||any UK or international regulatory body including government and self-regulatory and industry bodies with authority over, or which issue guidance in respect of the subject matter of the Services, the Customer's Service and User rights in existence from time to time and including, without limitation, Phonepay Plus, the Information Commissioner, Financial Services Authority and OFCOM;|
|Regulatory Fine||any fine or charge imposed by a Regulatory Body in respect of a Customer's Service;|
|Rental Fee||the monthly rental fee as set out on the Order Form;|
|Standard Capacity||means in relation to each Long Number:
i. 30 simultaneous calls
ii. 10 End users
or such other capacity as notified by Direct Numbers to the Customer from time to time.
|Start Date||the date on which the Long Number Service shall commence being [ ] 201[ ] and if the Customer applies for a Premium Long Number after this date, Start Date shall be deemed to also refer in respect of Premium Long Number and to the Premium Rate Start Date;|
|Term||has the meaning set out in Clause 9.1;|
|Terms and Conditions||the terms and conditions attached to and forming part of this Agreement;|
|Territory||the United Kingdom;|
|Third Party Provider||a third party with whom Direct Numbers has a contract for the provision of Long Numbers;|
1.2 In this Agreement (except where the context otherwise requires):
1.2.1 Any reference to a Clause or Sub-Clause or Appendix is to Clause or Sub-Clause or Appendix of this Agreement;
1.2.2 Clause heading are for reference only and shall not affect the interpretation of this Agreement;
1.2.3 Words importing the plural shall include the singular and vice versa and words importing the male gender shall include the female gender and vice versa; and
1.2.4 to the extent that there is any conflict between the terms set out in the Order Form, Appendices, these Terms and Conditions or the Premium Rate Terms and Conditions the following order of priority will apply:
188.8.131.52 the Order From
184.108.40.206 the Appendices
220.127.116.11 the Premium Rate Terms and Conditions (where a Premium Rate Service is taken)
18.104.22.168 the Terms and Conditions.
1.2.5 references to persons include individuals, firms, partnerships, limited liability partnerships, companies, corporations, unincorporated associations, governments, authorities, agencies and trusts (in each case, whether or not having separate legal personality);
1.2.6 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
1.2.7 a reference to a statute or statutory provision includes a reference to any subordinate legislation (within the meaning of section 21(1) of the Interpretation Act 1978) made under it from time to time and a reference to a statute, statutory provision or subordinate legislation includes a reference to such statute, statutory provision or subordinate legislation as from time to time amended, re-enacted or replaced (whether before or after the date of this Agreement) save to the extent that any such amendment, re-enactment or replacement which takes effect after the date of this Agreement would impose any new or extended obligation or liability on, or otherwise adversely affect the rights of, Direct Numbers;
1.2.8 Where the Customer is not receiving Premium Long Numbers from Direct Numbers references in this Agreement to Appendix C shall not apply.
2 OBLIGATIONS AND APPOINTMENT
2.1 Subject to the terms of this Agreement and in consideration of the payment of the Fees to Direct Numbers by the Customer, Direct Numbers hereby agrees to provide the Long Number Service to the Customer;
2.2 [The Customer shall not market or promote the Long Number or sub-licence or make the Long Number available to any third party outside of the United Kingdom.]
2.3 [The Customer shall market the Long Number by reference to the Customer's name or such other reference as Direct Numbers may permit (in its absolute discretion) from time to time.]
2.4 The Customer acknowledges and agrees that it is an independent entity providing the Long Numbers to End Users in its own name and on its own terms and shall not be or represent itself as an agent or legal representative of Direct Numbers for any purpose whatsoever. The Customer shall not have the authority to commit Direct Numbers contractually or otherwise have authority to act as Direct Number's agent.
2.5 Direct Numbers will:
2.5.1 provide the Customer with one or more Long Numbers in accordance with each Order Form accepted by Direct Numbers;
2.5.2 charge the Customer the rates as set out in Appendix A and/or Appendix D as appropriate;
2.5.3 charge the Customer the Line Rental Fee;
2.5.4 charge the Customer the Connection Fee.
("Long Number Service").
2.6 Direct Numbers will use all reasonable endeavours to ensure the uninterrupted and timely supply of the Long Number Service and to correct any errors or omissions in the Long Number Service whether or not Direct Numbers has received notice of the same.
2.7 Direct Numbers may, at its sole discretion, temporarily suspend the operation of the Long Number Service for the purpose of repair, maintenance or improvement of the Long Number Service or any of Direct Number's systems or where any of the Third Party Providers who host the Long Numbers suspends the operation of one or more Long Numbers. Direct Numbers shall, if practicable, notify Customer in advance of any such suspension and shall restore the Long Number Service as soon as reasonably practicable. Customer acknowledges that Networks and Third Party Providers are susceptible to suspension and downtime and that other suspensions of the Long Number Service may therefore occur that are beyond Direct Number's control. Direct Numbers does not and cannot therefore give any warranties that the Long Number Service will be available uninterrupted and without delays.
2.8 Direct Numbers will forward any complaints or queries that it receives from a Regulatory Body, End User, Third Party Provider or Network in connection with the Customer's use of the Long Number Service to the Customer in accordance with the Customer contact details provided by the Customer as soon as reasonably practicable and the Customer shall deal with such complaint or query within two Business Day and keep shall Direct Numbers updated on the status and resolution of the same promptly upon request from Direct Numbers.
3 OBLIGATIONS OF THE CUSTOMER
3.1 The Customer shall bear full responsibility for all aspects of the use made of each Long Number including without limitation, ensuring that:
3.1.1 the Customer's use of each Long Number complies with all relevant Legislation;
3.1.2 the Customer provides all support and liaison reasonably required by End Users including, without limitation, the provision of responses to End User enquiries and complaints concerning the use and charging rates of a Long Number;
3.1.3 the Customer's use of a Long Number are not of a nature likely to bring Direct Numbers, any Third Party Provider or any Network into disrepute or breach any Legislation;
3.1.4 the Customer's Service does not:
22.214.171.124 contains anything obscene, racist, unlawful or is likely, in the light of prevailing standards of decency and propriety, to cause offence;
126.96.36.199 which will or is likely to incite crime or lead to disorder;
188.8.131.52 which is or is likely to be libellous, defamatory, abusive or menacing;
3.1.5 the Customer shall implement and maintain appropriate controls to ensure that the Long Number Services is not being used or operated fraudulently or illegally.
3.2 The Customer warrants, represents and undertakes to Direct Numbers that it is legally entitled to enter into the terms of this Agreement and is licensed and duly authorised as required to use the Long Number Service;
3.3 The Customer shall from time to time throughout the Term promptly provide Direct Numbers on request with:
3.3.1 such assistance and/or information as Direct Numbers may from time to time require in order to comply or otherwise meet any requests or notices received by Direct Numbers from a Regulatory Body, a Third Party Provider, the police or any Network in relation to the use of the Long Numbers or the provision of the Long Number Service under this Agreement and/or the Customer's Service and the Customer hereby consents to Direct Numbers disclosing such information to such Regulatory Body, Third Party Provider, the police or Network;
3.3.2 such information as Direct Numbers may from time to time request in order to verify to Direct Number's satisfaction the Customer's compliance with its obligations under this Agreement; and
3.3.3 such information as Direct Numbers may from time to time request in order deal with End User or Network enquiries or complaints.
3.4 The Customer shall provide Direct Numbers with not less than fifteen (15) Business Days' notice of Customer's intention to launch a new Long Number or to amend the use of an existing Long Number in respect of any Network.
3.5 The Customer shall provide Direct Numbers with not less than ten (10) Business Days' notice of its intention to advertise a Long Number or of any other relevant event that could have a significant or adverse effect on any Network or Third Party Provider for example TV advertising.
3.6 The Customer shall ensure that the Standard Capacity in respect of each Long Number is complied with. Direct Numbers reserves the right to terminate inbound calls which exceed the Standard Capacity.
4 REPORTING, ACCOUNTS AND PAYMENT
4.1 Direct Numbers will provide monthly invoices, either electronically via an online account or by way of email, detailing the use of each Long Number and the fees payable, calculated in accordance with the Rates ("Invoice"). Such Invoices shall be delivered within 15 days of the end of each calendar month to the Customer's Notified Email Address ("Monthly Call Charges").
4.2 The Customer must pay each Invoice within 30 days of the date of such invoice by credit/debit cards, direct debit or on-line payment.
4.3 Where usage can be pre-determined, the Customer shall pay each month's charges in advance. Where usage cannot be pre-determined, Direct Numbers reserves the right to request a security deposit.
4.4 The Connection Fee and where applicable, the first month's Monthly Fee, must be paid prior to any Long Number being connected using such method of payment as Direct Numbers shall direct.
4.5 Where a Monthly Fee is due, such fee shall be payable monthly in advance by such method of payment as Direct Numbers shall direct.
4.6 For the avoidance of doubt the Customer will be obliged to pay all Fees owing to Direct Numbers, in full and without deduction.
4.7 The Rates are based on rates charged by network operators and are thus subject to change during the Term of the Agreement. Any Rate changes shall be applied on the first day of each calendar month;
4.8 Without prejudice to Clause 4.2, Direct Numbers reserves the right to offset monies owed to it by the Customer against monies it owes to the Customer at any time.
4.9 Customer will keep and maintain full, true and accurate records containing all data reasonably required for verification of its compliance with the terms of this Agreement for a minimum period of six years.
4.10 Direct Numbers reserves the right to change the Rates and/or introduce new charges. Where the Rates are increased by 10% or more or where the increase is not due to a change implemented by a Network or Third Party Provider, the Customer shall be entitled to terminate this Agreement on 30 days written notice.
4.11 Where a Network, Third Party Provider or Regulatory body requires any changes to the terms of this contract which are beyond the control of Direct Numbers, Direct Numbers shall be entitled to make such changes to this Agreement.
4.12 If at any time during the Term, in the reasonable opinion of Direct Numbers, the Customer's financial standing changes adversely or the Customer defaults in paying the Fees more than 3 times (whether such default is in respect of the whole of or part of the Fees due), Direct Number's reserves the right to request a security deposit and payment of the Fees in advance. Where the Customer does not comply with any such request under this Clause 4.11, Direct Numbers may terminate the contract on 10 days notice.
5 INDEMNITIES AND LIABILITIES
5.1 Nothing in this Agreement shall exclude or limit the liability of either party for death or personal injury arising from that party's or its employees', agents' or subcontractors' negligence or for fraudulent misrepresentation.
5.2 Direct Numbers shall not be liable to the Customer in contract, tort (including, without limitation, negligence) or in any other way for:
5.2.1 any economic losses including without limitation loss of revenues, profits, contracts, business or anticipated savings (whether direct, indirect or consequential in nature); or
5.2.2 any loss of goodwill or reputation (whether direct, indirect or consequential in nature); or
5.2.3 any loss of data (whether direct, indirect or consequential in nature); or
5.2.4 any economic losses and any other losses which are indirect or consequential in nature
in any case, whether or not such losses were within the contemplation of any party at the date of this Agreement, or suffered or incurred by any party arising out of or in connection with the provision of the Service or any matter under this Agreement.
5.3 Subject always to the indemnities under Clauses 5.4 and 7.2 below (under which liability shall not be limited), the liability of either party in respect of any loss or damage arising out of or in connection with this Agreement whether in contract, tort or otherwise shall be limited in aggregate in any Liability Period to the higher of Fees owed under this Agreement by the Customer to Direct Numbers in respect of that Liability Period in respect of the Customer's Service to which the liability or loss relates and £1,000,000.
5.4 The Customer shall indemnify Direct Numbers (on an after tax basis) against all damages, losses, liabilities costs and expenses (including reasonable legal fees and any consequential losses) incurred by Direct Numbers in respect of:
5.4.1 any and all claims made against Direct Numbers or financial penalties or charges imposed on Direct Numbers pursuant to a breach or suspected breach, act or omission, by the Customer of its obligations under this Agreement or otherwise in respect of the Customer's use of the Service including, without limitation, reimbursement of any Regulatory Fines imposed on Direct Numbers and/or of any penalties or other charges imposed by a Network on Direct Numbers and attributable in whole or in part to any such breach or the Customer's use of the Service; and/or
5.4.2 any breach by the Customer of Clauses 3.1.3, 3.1.4 or 7; and /or
5.4.3 reimbursement of any loss arising as a result of a sanction imposed on Direct Numbers by a Network or Third Party Provider, including the suspension or termination (whether the whole or in part) of Direct Numbers service attributable in whole or in part to any such breach or the Customer's Service; and/or
5.4.4 reimbursement of any loss arising as a result of a sanction or any adverse history imposed on Direct Numbers by a Network or Third Party Provider which is attributable in whole or in part to the Customer's Service or the Customer's breach of this Agreement.
5.4.5 payment of Direct Number's Regulatory Administration Fee
5.4.6 and, for the avoidance of doubt, Direct Numbers shall be entitled to deduct any such damages, loss, costs, expenses, penalties or charges directly arising under this Clause 5.4 from any monies owed to the Customer by Direct Numbers under Clause 4.
For the avoidance of doubt Direct Numbers shall be entitled to such indemnity irrespective of the cumulative fine or sanctions history of Direct Numbers regarding a Network (or Networks) or Regulatory Body.
5.5 Direct Numbers shall have no liability to the Customer, or to any End User for any fault or suspension or failure of the Long Number Service or part thereof as a result of the acts or omissions of any Network or by any other third party.
5.6 Without prejudice to the Customer's other obligations under this Agreement, the Customer shall effect and maintain suitable liability insurance with a reputable insurance company of not less than one million Pounds Sterling for each and every claim arising under or pursuant to this Agreement or otherwise in connection with the Customer's use of the Service and shall produce on demand a copy of such policy together with a receipt of the current premium.
5.7 The provisions of this Clause 5 shall survive termination of this Agreement without limit in time.
6 CONFIDENTIALITY AND PUBLICITY
6.1 Each of the parties shall keep confidential (and ensure that its employees keep confidential) all information concerning the business, finances, technology, affairs, clients, marketing plans of the other party and other information which is identified as such or is confidential by its nature (including, but not limited to, the terms of this Agreement) ("Confidential Information").
6.2 The provisions of Clause 6.1 shall not apply to:
6.2.1 information that has come into the public domain other than by breach of this Clause 6 or any other confidence;
6.2.2 information that is obtained from a third party without breach of this Clause 6 or other duty of confidence;
6.2.3 information that is known by a party and which has been disclosed to that party by a third party, other than a subsidiary or holding company of the other party or a sub-contractor of either party not in breach of any duty of confidence;
6.2.4 information that is required to be disclosed by law;
6.2.5 information that is disclosed to professional advisors for the purpose of obtaining professional advice; or
6.2.6 information in the possession of the party at the time the Confidential Information was disclosed to it by the other party or which is independently developed without reference to any Confidential Information of the other party.
6.3 The obligations set out in this Clause 6 shall survive termination of this Agreement without limit in time.
7 DATA PROTECTION
7.1 All End User Data shall be and remain the property of the Customer (subject always to any rights that any third party may have in such End User Data).
7.2 Each of the parties shall comply with the provisions of the Data Protection Act 1998 and other relevant Legislation where and to the extent that such provisions relate to that party. The Customer shall indemnify Direct Numbers, in full, and without limitation against all and any losses arising as a result of their failure to do so, without limit.
7.3 The Customer acknowledges and consents that Direct Numbers may be required to disclose End User Data to Regulatory Bodies, the police, Third Party Providers or Networks (who in turn may disclose such End User Data to Regulatory Bodies or the police). The Customer also acknowledges and consents that Direct Numbers may disclose End User Data to Networks for Networks' own use. The Customer hereby confirms that it has the necessary permissions in order to grant such consent under this Clause 6.2.
8.1 Save to the extent provided in Clause 7.3, All IPR in the Customer's use of the Long Number Service shall remain the property of the Customer.
8.2 All IPR in the systems or technology used in connection with the Service, and all IPR and goodwill in and relating to the Direct Numbers Marks, shall remain the property of Direct Numbers and the Customer shall, execute all documents and do all things required by Direct Numbers to transfer to Direct Numbers any and all of the foregoing (including any goodwill generated by the use of Direct Numbers Marks by the Customer and/or Licensees) which the Customer may own.
9 TERM, TERMINATION AND EFFECT OF TERMINATION
9.1 This Agreement shall take effect on the Start Date and shall until terminated in accordance with this Clause 9 ("Term").
9.2 Either party may terminate this Agreement by giving at least 30 days' written notice to the other party.
9.3 Notwithstanding Clause 9.2 and without prejudice to Clause 9.4, either party may terminate this Agreement at any time immediately on written notice to the other party:
9.3.1 where the other party commits a material breach of its obligations under this Agreement (and for the purposes of this Clause 9.3.1 a breach by the Customer of any of its obligations under Clause 3.1 shall constitute a material breach by the Customer) and, if the material breach is capable of remedy, fails to remedy it during a period of 10 days starting on the date of receipt of notice from the non-defaulting party requiring it to be remedied;
9.3.2 if the Customer suspects the Customer of artificially inflating traffic in connection with the Long Number Service;
9.3.3 if, where the Customer has Premium Long Numbers, the Customer's registration with PhonePay Plus is revoked;
9.3.4 if the other party:
184.108.40.206 goes into administration administrative receivership liquidation or either compulsory or voluntary receivership (save for the purpose of reconstruction or amalgamation); or
220.127.116.11 compounds with any one or more of its creditors or suffers a petition for winding up (otherwise than for reconstruction or amalgamation); or
18.104.22.168 has a receiver or administrative receiver appointed in respect of the whole or any part of its assets or makes an assignment for the benefit of or composition with its creditors; or
22.214.171.124 Submits a proposal by its directors for voluntary arrangement under Part 1, Insolvency Act 1986; or
126.96.36.199 is unable to pay or suspends payment of its debts as they fall due within the meaning of Section 123 of the Insolvency Act 1986; or
188.8.131.52 threatens to do or have done to it or suffers any similar or analogous action in consequence of debt as mentioned in clauses 184.108.40.206 to 220.127.116.11.
9.3.5 if, pursuant to Clause 11.2, the other party is prevented from performing its obligations hereunder by reason of force majeure (as defined in Clause 10.2) lasting for any continuous period in excess of 30 days.
9.4 Notwithstanding Clause 9.1, Direct Numbers may terminate this Agreement and/or suspend the Service (or any part thereof) at any time (including during the Initial Term) immediately on written notice to the Customer:
9.4.1 if the Customer is, or Direct Numbers has reason to suspect that the Customer is, in breach of Clause 3.1; or
9.4.2 where Direct Numbers is required to do so by a Regulatory Body, Third Party Provider or Network for whatever reason or where a Network or Third Party Provider has terminated its agreement with Direct Numbers for whatever reason and the Customer has required Direct Numbers to use that Network; or
9.4.3 if the Customer does not pay any or all Fees by the date on which such Fees are due under the terms of this Agreement.
9.5 On termination of this Agreement, the provision of any Long Number Services shall cease, each party shall return to the other party all property of the other in its possession or control and, each party shall, as soon as practicable, provide the other party with an up to date report of all amounts accruing to the other party subsequent to those shown in reports last submitted to the other party and not later than thirty days after the date of such report the relevant party shall pay to the other party any sums due to the other party under this Agreement.
9.6 The expiry or termination of this Agreement shall be without prejudice to any rights that have already accrued to either of the parties under this Agreement. The payment provisions shall remain in effect until all sums due to either party have been paid in full.
9.7 If Direct Numbers suspends the Customers Service in accordance with Clause 9.4 of this Agreement, Direct Numbers in its sole discretion may charge a penalty fee to the Customer for any subsequent reconnection. Such amount of penalty is to be at the sole discretion of.
9.8 The provisions of Clauses 1, 5, 6, 7 and 8 shall survive termination of this Agreement.
10 PREMIUM RATE SERVICES AND 0300 NUMBERS
10.1 Where the Customer requests a Premium Long Number or where the Customer provides a service that must use a Premium Long Number, the Customer shall comply with the Premium Rate Terms and Conditions, which shall apply in addition to these Terms and Conditions.
10.2 The Customer shall not use any Long Number that is not a Premium Long Number for any premium rate services or services which are regulated by PhonePay Plus.
10.3 Direct Numbers shall only provide 0300 numbers to a Customer who is a public body or not for profit organisation and the Customer shall provide Direct Numbers with any reasonable request for information to confirm such status. Direct Numbers reserves the right refuse the provision of an 0300 number where the Customer is not a charity registered with the United Kingdom Charity Registry.
10.4 Where a Customer loses its status as a not for profit organisation or government body, the Customer shall immediately inform Direct Numbers and any 0300 numbers provided shall be immediately terminated.
10.5 Any conflict, discrepancy or confusion between these Terms and Conditions and the Premium Rate Terms and Conditions, shall, in respect of any Premium Long Number service, be read by reference to and construed in favour of the Premium Rate Terms and Conditions and such terms shall prevail over the Terms and Conditions in the main body of this Agreement.
11.1 Direct Numbers may, at its cost and expense, subcontract, assign, and/or novate any or all of its rights and/or obligations under this Agreement but shall remain responsible for the acts or omissions of its sub contractors in the performance or non-performance of those obligations. The Customer may not assign, novate or subcontract its rights and/or obligations under this Agreement without Direct Numbers' prior written consent.
11.2 Neither party shall be liable in respect of any breach of this Agreement (other than failure to make payment when due) due to any cause beyond its reasonable control including but not limited to Act of God, inclement weather, flood, lightening or fire, industrial action, or lockouts, the act or omission of Government, any Regulatory Body or other competent authority, war, military operations, terrorist activities or riot, or non-operation or defective operation of the Networks or any of them. It is agreed that the Customer's inability to provide the Long Number Serviced to an End User by reason of any failure of any equipment or services not provided by Direct Numbers or the Networks shall not relieve it from its obligations to pay any Fees or other amounts due under this Agreement.
11.3 Any notice to be given or made under this Agreement shall be in writing and delivered by hand or sent by first class prepaid registered delivery letter, fax or email to the address and for the attention of the other party as set out in the Order Form or such other address as shall be notified from time to time and such notice shall be deemed to be received:
11.3.1 if hand delivered or sent by prepaid recorded or special delivery prepaid international recorded airmail, at the time of receipt;
11.3.2 in the case of email, 24 hours from the time of transmission unless the sender has received notification that such email has not been successfully delivered;
11.3.3 in the case of fax, at the time of transmission,
11.3.4 provided that, if deemed receipt occurs before 9.00am on a Business Day, the notice shall be deemed to have been received at 9.00am on that day and, if deemed receipt occurs after 5.00pm on a Business Day or on any day which is not a Business Day, the notice shall be deemed to have been given at 9.00am on the next Business Day.
11.4 No addition to, or modification of, any provision of this Agreement shall be binding on the parties unless made by a written instrument and signed by a duly authorised representative of each of the parties.
11.5 The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
11.6 If a Court decides that any provision of this Agreement cannot be enforced, that particular part of the Agreement will not apply but the rest will. However the parties will negotiate in good faith to restate such provision to reflect the original intentions of the parties as nearly as is possible in accordance with applicable law, and the remaining provisions of this Agreement. The invalidity, illegality or unenforceability of any provisions or part of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement, or provisions as the case may be.
11.7 Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
11.8 This Agreement may be executed in any number of counterparts each of which when delivered shall be an original but all the counterparts together shall constitute one and the same instrument.
11.9 The parties shall, and where appropriate, shall use their respective reasonable endeavours to procure, so far as they are able that any third parties shall, execute and perform all such further deeds, documents, assurances, acts and things as any of the parties may reasonable require, by notice in writing to the other to carry the provisions of this Agreement into effect.
11.10 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 (the Act) to rely upon or enforce any term of this Agreement, but this does not affect any right or remedy of a third party including, without limitation, any Regulatory Body which exists or is available apart from the Act.
11.11 This Agreement and the documents referred to in it, constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.
11.12 Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty.
11.13 If the Customer defaults in the payment when due of any sum payable by it under this Agreement (whether determined by agreement or pursuant to an order of a Court or otherwise) a late payment of charge of £10 may be applied and interest shall be payable by the Customer on such sum from the date when such payment is due until the date of actual payment in cleared funds (after as well as before judgment) at a rate per annum of 3 per cent above the base rate from time to time of Barclays Bank PLC. Such interest shall accrue from day to day and be compounded quarterly.
11.14 All Fees and amounts payable by the Customer under this Agreement shall be paid in full without any deduction or withholding other than as required by law. If any deduction or withholding is required by law the Customer shall be obliged to pay to Direct Numbers such additional amount as will result in the receipt by Direct Numbers of a net amount equal to what it would have been entitled to receive in the absence of the requirement to make a deduction or withholding.
11.15 This Agreement shall be exclusively governed by and construed in accordance with the laws of England and Wales whose Courts shall have exclusive jurisdiction in any dispute.