Terms and Conditions
EFFECTIVE 1st October 2015
1.1 In this Agreement:
Agreement means this Agreement laid out herein and on Vivid Telecom Limited.
Vivid means Vivid Telecom Limited, whose registered office is at Unit 2477 Chynoweth House, Trevissome Park. Truro, Cornwall, TR4 8UN.
Customer means any person or organisation with whom Vivid Telecom enters into an Agreement following acceptance of a written application by that person or organisation.
Extension means the internal number used to communicate within the Customer’s network which can consist of a 3 digit number. The extension can also be the username which is used to authenticate a connection when using an application device.
Minimum Period means the contract length corresponding with the relevant Product being provided referred to in Schedule 1.
PSTN Telephone numbers are unique public telephone numbers provided for use for the customer services.
Price book means the list of Vivid Telecom Call rates provided in the rate card, as amended from time to time under Schedule 2.
Service means the provision of the services and Products as detailed in Schedule 3.
Service Charges means the sums payable for provision of the Services.
Service Commencement Date means the date identified as the delivery date on the Vivid Telecom invoices to the Customer.
Service Contract Order Form means the form provided by Vivid Telecom to the Customer which may be used to order the Services incorporating these terms and conditions.
- COMMENCEMENT AND DURATION
2.1 The agreement shall commence on the date on which it has been signed by both parties and shall continue, unless terminated earlier in accordance with clause 16, until either party gives to the other party one month’s written notice to terminate, expiring on or after the end of the Minimum Period.
- ACCEPTANCE OF APPLICATION FOR SERVICE
3.1 The Customer will apply for the Service by either ordering this from the website or from a field sales advisor. Vivid Telecom reserves the right to refuse any application for the Service. Once the order has been completed, the Customer has agreed to enter into this Agreement by either accepting the terms and conditions on the website or by signing the order form provided by Vivid Telecom. Credit checks may be carried out before the account is made active.
3.2 Before acceptance of the Application, Vivid Telecom will determine the credit limit (if any) to be provided to the Customer in the provision of the services. If the customer fails to pass such credit checks then they will be placed on to a prepay package meaning that manual top-ups would need to be done to use the Services.
- THE SERVICE
4.1 Subject to this Agreement Vivid Telecom will:
(a) Provide the Customer with the Services from the Service Commencement Date.
(b) Provide the Customer with the best skill and care of a professional telecoms provider.
(c) Provide the Customer with their own VPS (Virtual Private Server) which will consist of dedicated resources such as memory and hard drive.
(d) Attempt to offer the Service with the least number of faults where possible however majority of the faults would be caused by the data broadband provider. Vivid Telecom shall repair any such faults which affects the Service once such fault has been brought to Vivid Telecom’s attention.
4.2 Occasionally, Vivid Telecom may:
(a) suspend the service for operational reasons such as maintenance, network alternations
- USE OF THE SERVICE
5.1 The Customer may not use Vivid Telecom Hosted PBX Service in any way that:
(a) does not comply with the terms of any legislation or any licence applicable to the Customer or is unlawful;
(b) does not comply with any instructions given under clause 4.2 c) or by another telecommunications operator or competent authority in any country where the Service is provided; or
(c) will knowingly put Vivid Telecom in breach of the terms of any agreement it has with any other telecommunications operator.
5.2 The Customer indemnifies Vivid Telecom against any claims or legal proceedings, which are brought or threatened against them by a third party because the Service is used in breach of clause 5.1.
- INTELLECTUAL PROPERTY RIGHTS
6.1 Each party agrees not to use any trading name, trademark or logo of the other party (whether registered or not), without that party’s prior written consent.
7.1 Each party shall keep in confidence any information (whether written or oral) of a confidential nature (including software and manuals) obtained under the agreement and shall not disclose that information to any person (other than its employees, professional advisers or its suppliers who need to know the information) without the written consent of the other party.
7.2 This clause 7 does not apply to information that:
(a) has been published other than through a breach of this agreement;
(b) was lawfully in the possession of the recipient before the disclosure under this agreement took place;
(c) is obtained from a third party who is free to disclose it; or
(d) a party is requested to disclose and, if it did not, could be required by law to do so.
7.3 Each of the party’s liability under this clause 7 is unlimited and the limitations of liability in clause 13 do not therefore apply to this clause 7.
7.4 This clause 7 terminates any confidentiality agreement relating to the Service previously entered into by the parties and will remain in effect for two years after the termination of this agreement.
- BILLING AND PAYMENT
9.1 The charges for the Service shall be calculated in accordance with Vivid Telecom’s order form or price on the website. Charging for Calls will begin on the Service Commencement Date and will be calculated in accordance with the Call details recorded by, or on behalf of, the receiving party.
9.2 Vivid Telecom will invoice the Customer monthly for the Service unless any other payment method has been agreed in writing or as detailed on the Service Contract Order Form.
9.3 Vivid Telecom will also invoice for SIP trunks, numbers, set up costs and any other disbursements reasonably incurred on your behalf. Such disbursements will be billed monthly and in arrears for calls and in advance for service charges.
9.4 Each invoice must be paid in full, using the payment methods detailed in clause 10, so that the payment is received by Vivid Telecom no later than 14 days from the date of its’ invoice. Failure to pay an invoice within 14 days of receipt may result in suspension of services. Vivid Telecom retains the right to permanently cease its’ services to the Customer after failure to pay for the services provided to the Customer.
9.5 Vivid Telecom reserves the right to vary from time to time all charges for the Service with 14 days’ notice to the Customer.
9.6 All payments shall be due to Vivid Telecom on presentation of invoice unless otherwise specified on the invoice or in writing.
9.7 Invoices will be presented by electronic mail to the e-mail address given in the Agreement or to such e-mail address as the recipient may have notified to Vivid Telecom. If the customer requires an invoice to be sent via post then an administration fee of £3.50 will be applied to the customers invoice at time of billing.
9.8 If the Customer fails to make any payment due to the other party under this clause 9, then, without limiting the other party’s remedies under clause 9.12, the Customer shall receive a late payment fee of £5.00 to cover the cost of such administration fees.
9.9 If the customer fails to pay for the invoices longer than 30 days and the service is terminated the customer would have to pay a reconnection fee of £50.00 + VAT to restore the service.
9.10 If the customer fails to pay for the invoices on time Vivid Telecom may only unsuspend your service once a direct debit has been completed and received payments are up to date.
- PAYMENT OPTIONS
The payment options available are as follows:
10.1 Vivid Telecom would recommend that a Direct Debit is setup for the service provided to avoid suspension and additional charges being added to your account. Vivid Telecom would accept other payments on the basis that such invoices are paid on time. If manual payments are made to Vivid Telecom you would need to ensure that for the reference of all payments that you use the Invoice number so we can allocate the payment.
10.2 Payments collected via Direct Debit will show reference on the Customer’s bank statement as either Vivid Telecom Ltd or Go Cardless Limited.
- USAGE AND ACCEPTABLE USE POLICY
11.1 The Customer hereby agrees to:
11.1.1 Not to use the service to harass other companies or withheld your number to hide from the customer you are contacting. The outbound number within your PBX will only be setup once we are able to confirm it is working. Vivid Telecom will call the number in question to ensure that this call is picked up before this is setup within your account. If such abuse complaints are received Vivid Telecom may suspend the service to comply with government requirements and/or provide your details to the authorities if we have been advised to do so.
11.1.2 Refrain from sending and from causing, allowing or enabling to be sent, any menacing, offensive, abusive or annoying messages whilst using the Service via Vivid Telecom or any other ISP.
11.1.5 Keep Vivid Telecom informed of any changes to the Customer’s address and other such information as may effect provision of the service or payment of charges due.
11.1.6 Immediately cease to use and return any Internet Addresses allocated by Vivid Telecom to the Customer on termination of this Agreement.
11.1.7 Not to use or permit the usage of the service in an unlawful manner or in contradiction of any published legislation or regulations or Codes of Practice governing or relevant to the Internet or PSTN.
12.1 All equipment would be owned by the customer including the warranty that is provided to them.
13.1 Nothing in this Agreement shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
13.2 Subject to clause 13.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed any sums payable by Vivid Telecon’s insurers or in the event that the loss is not covered by insurance liability will be limited to the aggregate sum of any sums payable (excluding any call charges and disbursements) under the Agreement within the previous 12 months
13.3 This clause 9 shall survive termination of the Contract.
13.4 In accordance with section 28 of this document, the customer will be liable for any losses incurred by Vivid Telecom, the Customer or any third party as a result of any illegal, immoral or fraudulent calls made from the customer’s site or fraudulent calls made with the customers SIP account(s) and password(s).
- CHANGES TO THE SERVICE
14.1 If any Network Operator or third party supplier shall discontinue the provision of telecommunications services or other supply to Vivid Telecom, or shall alter by modification, expansion, improvement, maintenance or repair of the telecommunications services or other supply, or any part thereof, provided to Vivid Telecom, or shall disconnect Vivid Telecom’s apparatus from the PSTN or Internet, Vivid Telecom shall be entitled to discontinue, alter, modify, expand, improve, maintain, repair, suspend, disconnect or otherwise change the Services as necessary.
15.1. The Service may be suspended by Vivid Telecom without notice and without prejudice to Vivid Telecoms’ Rights of Termination under Clause 16 if:
15.1.1 The Customer fails to make any payment to be made to Vivid Telecom by its’ due date for payment in accordance with clause 9.
15.1.2 The Customer breaches any of the conditions in Clause 11 (Acceptable Use Policy)
15.1.3 The Customer does or suffers anything to be done which jeopardises the Service or any network to which it is from time to time connected.
15.1.4 The Customer’s credit limit (if applicable) has been exceeded. The customer can opt in to pay for the exceeded limit in order for their service to be reactivated. Incoming calls to the service will not be affected.
15.2 No such suspension shall affect the liability of the Customer to pay charges and other amounts to Vivid Telecom and, without limitation, the charges for Services will continue to accrue. During suspension Vivid Telecom reserves the right to refuse to release the Customer’s Services or Internet Addresses or PSTN telephone numbers as issued by Vivid Telecom.
16.1 Vivid Telecom reserves the right to terminate this Agreement upon one month’s notice.
16.2 Termination can be effected by the Customer by e-mail notification giving the relevant notice referred to in Schedule 1 of this Agreement to email@example.com. Other methods to terminate service will be rejected.
16.3 Vivid Telecom may terminate this Agreement at any time and without notice:
- a) if the Customer commits any breach of this Agreement if, following notice of the breach by Vivid Telecom to the Customer, the Customer has not remedied the breach within 30 days.
- b) in accordance with clause 15.
16.4 No refund of payments will be made to the Customer upon termination of the Agreement by either Vivid Telecom or the Customer.
17.1 Vivid Telecom represents and warrants that Vivid Telecom has the power and authority to enter into and perform its’ obligations under this Agreement and under any Agreements incorporating this Agreement
17.2 The Customer represents and warrants that:
- a) The Customer has the power and authority to enter into its obligations under this Agreement and under any other Agreements incorporating this Agreement
b) Customer Content, voice or data, does not and shall not contain any materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party.
17.3 Disclaimer of Warranty; VIVID TELECOM (NOR ITS LICENSORS) DOES NOT MAKE ANY WARRANTIES HERE UNDER, EXPRESS OR IMPLIED, AND DISCLAIMS AND EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, USAGE OF TRADE AND COURSE OF DEALING. THE CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND THE CUSTOMER UNDERSTANDS THAT HE/SHE ASSUMES ALL RISKS REGARDING USE, QUALITY AND PERFORMANCE (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH UNINTERRUPTED ACCESS TO SERVICES). WITHOUT LIMITING THE FOREGOING, THE CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT SERVICES MAY BE PERIODICALLY UNAVAILABLE DUE TO SERVICING, MAINTENANCE OR OTHER CAUSES
- RIGHTS ON TERMINATION
18.1 Termination of the Agreement shall not affect any pre-existing liability of the Customer or affect any right of Vivid Telecom to recover damages or pursue any other remedy in respect of any breach by the Customer of the Agreement.
18.2 In the event of termination of the Agreement by Vivid Telecom on account of any breach of this Agreement by the Customer, Vivid Telecom shall be entitled to the balance of all charges which, but for such termination, would have accrued due up to the earliest date on which the Agreement could have been terminated by the Customer in accordance with the terms hereof.
19.1 Suspension notices for non-payment of Charges will be deemed as delivered by electronic mail to the e-mail address, given in the Application or to such e- mail address as the Customer may have notified Vivid Telecom.
20.1 Each party hereto undertakes to the other that it shall keep, and shall procure that its directors and employees shall keep, secret and confidential and shall not use or disclose to any other person any information or material of a technical or business nature relating in any manner to the business, products or services of the other party which the first party may receive or obtain in connection with or incidental to performance of this Agreement, provided that:
20.1.1 the first party shall not be prevented from using any general knowledge, experience and skills not treated by the other party as confidential or which do not properly belong to the other party and which the first party may have acquired or developed at any time during this Agreement
- SERVICE LEVEL GUARANTEE
21.1 Vivid Telecom warrants that its voice services shall have a successful uptime of 95% however such warranties exclude:
- a) Failures of local or third party circuits between Vivid Telecoms’ network and the Customer’s network; and
- b) Failures of network / equipment not operated by Vivid Telecom.
- c) Failures of network / equipment operated by the Customer.
27.2 In the event of suspension of service due to a technical fault in the network, force majeure or act of God, Vivid Telecom will use all reasonable endeavours to resume service with minimum delay but will not be responsible for loss suffered by the Customer.
27.3 Should the level of service not conform to the Service Level Guarantee, Vivid Telecom will provide a credit to be offset against the next invoice to the Customer for the Service. Credits are worked out based on how long the downtime has occurred for, this excludes call charges and virtual numbers. No such credits shall apply or shall be valid if the customer is in breach of this Agreement.
Example: 4 Hours = 10%
6 Hours = 15%
12 Hours = 30%
24 Hours = 50%
28.1 These Terms and Conditions are governed by the laws of England and Wales and will be interpreted in accordance with the English courts. The English courts shall have exclusive jurisdiction to settle any claim or dispute which might arise out of or in connection with these terms and conditions.
29.1 For the avoidance of doubt fraudulent calls include but not limited to;
- a) Calls made from the customers PBX without their knowledge;
- b) Calls made utilising customers authentication details; and
- c) Calls made from an authenticated IP address
Each hosted solution comes with its own ‘Fraud Management System’ to assist with the prevention of such fraudulent activities. Vivid Telecom is unable to accept liability for any costs accrued because of breach in the service provided. Each customer has their own VPS environment which is private from all customers, and therefore the Customer’s responsibility to protect themselves from such fraud.
29.2 CUSTOMER RESPONSIBILIT
- a) Maintaining confidentiality and security of authentication details for both Vivid Telecom’s Portal and SIP Services
b) In the event of any suspected or known security breach the customer must ensure they have a process in place to mitigate exposure –
- Passwords to be reset and new passwords generated
- Report incident to Vivid Telecom
Vivid Telecom offers the service fairly and would not want to profit from such fraudulent calls and will charge the cost of the calls at its normal cost price.
By agreeing to these terms the Customer will accept full and complete liability for any costs incurred as a result of Fraud.