Terms and Conditions

1. Definitions
“Authorised Customer Contact” means the email address You provided to Us in the relevant Order.
“Charges” means the fees payable by You to Us for use of the Services
“Connection Charges” means the one off charge You pay to Us when the Service is first set up as set out in the relevant Order.
“Subscription Charges” means the recurring monthly charge You pay to Us for use of the Service as set out in the relevant Order.
“Telephony Charges“ means the charges that You may incur making or receiving telephone calls using the Services.
“API Charges” means the charges that You may incur in the importing or exporting of files into the Services.
“Storage Charges” means the charges that You may incur in storing of audio and associated files with the Service.
“Transcription Charges” means the charges that You may incur in the creation of transcripts from audio files that you may store in the Service.
“Service Due Date” means the date on which your Services will be available for use.
“Contract” means the same as set out in section 2.2.
“Customer’s Data” means any data, documents, text, drawings, diagrams, images or sounds (together with any database made up of any of those), embodied in any medium, that are supplied to Us by You or on Your behalf, or which We are required to generate, process, store or transmit pursuant to any Contract and including, for the avoidance of doubt, any recordings of telephone calls as part of the Services.
“Initial Period” means the period of 30 days following the handover of the service to You during which the service will not be charged and in which this Contract can be terminated without obligation.
“Insolvency Event” means, in respect of either party:

  • other than for the purposes of a bona fide reconstruction or amalgamation, such party passing a resolution for its winding up, or a court of competent jurisdiction making an order for it to be wound up or dissolved, or that party being otherwise dissolved; or
  • the appointment of an administrator of, or the making of an administration order in relation to, either party, or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or any part of the entity’s undertaking, assets, rights or revenue; or
  • that party entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them, or taking steps to obtain a moratorium, or making an application to a court of competent jurisdiction for protection from its creditors; or
  • that party being unable to pay its debts, or being capable of being deemed unable to pay its debts, within the meaning of section 123 of the Insolvency Act 1986; or
  • that party entering into any arrangement, compromise or composition in satisfaction of its debts with its creditors.

“Minimum Term” means the period of 12 months from the date set out in the Order or such longer period as We may agree with You.
“Order” means the same as set out in section 2.1.
“Regulatory Body” means those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled by any applicable law or regulation to supervise, regulate, investigate or influence the matters dealt with in any Contract or any other of Your affairs.
“Service” or “Services” means the telephony, storage, transcription, API, directory and messaging services to be supplied by Us to You under these terms and conditions and as set out on the website in the relevant Order.
“We” or “Us” means Resilient plc.
“You” means the customer to whom We provide the Service in accordance with these terms and conditions.
“Website” means www.resilientplc.com

2. THE SERVICE
2.1. These terms and conditions contain general terms relating to the provision by Us to You of the Services and should be read in conjunction with the information included on the smartnumbers Order Form completed by You (“Order”).
2.2. Each Order will form a separate contract (a “Contract”) between You and Us on the terms contained in the Order and in these terms and conditions. Each Contract will be separately terminable by either party in accordance with sections 2.3 and 10.
2.3. We reserve the right to suspend the Service without notice if We believe the Service is being used by You in breach of these terms and conditions or if You notify Us that someone has gained unauthorised access to the Service. Either party (the “non-defaulting party”) shall have the right to terminate any Contract upon written notice to the other party (the “defaulting party”) in the event of a breach of these terms and conditions that remains uncured 30 days after the non-defaulting party gives the defaulting party notice of such breach. For the avoidance of doubt, failure to pay the charges due under section 4.1 and 4.2 will constitute a breach.
2.4. You agree that We shall not be liable to provide the Service unless and until an Order has been accepted by Us in relation to the Service.
2.5. You agree that We operate a (fair use policy) which We may update from time to time.

2.6. Each party shall have the right to terminate any Contract immediately if an Insolvency Event affecting the other party has occurred.

2.7. Upon termination of a Contract (and, in relation to (i), at any time on Your written request), We shall (i) deliver the Customer’s Data to You; (ii) on Your written request, erase all Customer Data from computer and communications systems and devices used by Us, including such systems and data storage services provided by third parties (in each case to the extent technically practicable) and confirm in writing that this has been done; and (iii) for up to 12 months after the expiry or termination of the Contract, provide access during normal working hours to You and/or Your agents to such information relating to the Contract and relevant Services as remains in Our possession or control.

3. THE OBLIGATIONS YOU HAVE TO US
3.1. You shall ensure that You do not use the Service for unlawful purposes, including (but not limited to) the transmission of material that is defamatory or which infringes on the intellectual property rights of any third party.
3.2. You will be provided with passwords for accessing or using the Service and You must treat such passwords as confidential and must not reveal them to any third party. You are responsible for all activities that occur under the passwords that You have. You shall ensure that the passwords that You have are changed regularly.

4. CHARGES AND PAYMENTS
4.1. In each case the Order will set out all appropriate charges for the Service, applicable from the “Service Due Date” which will be billed quarterly in advance unless otherwise specified in your Order.
4.2. Telephony Charges, Storage Charges, Transcription Charges and API Charges will be billed in accordance with our tariff and will be billed monthly in arrears. The tariff is available on request.
4.3. We reserve the right to revise the Charges other than Telephony Charges on giving not less than three months’ prior written notice, such revisions not to come into effect prior to the next renewal of any Contract in accordance with section 9.1. We reserve the right to revise the Telephony Charges from time to time to reflect revisions made by Our communication providers.
4.4. If any invoice becomes overdue We reserve the right to charge interest at 3% above the base rate of the Royal Bank of Scotland and suspend the Service if such invoice remains overdue for four weeks.

5. PROPRIETARY PROTECTION
5.1. Subject to section 5.2, the intellectual property rights and/or other proprietary rights in the information (including hard copy and electronic, human-readable and otherwise) used or created by Us in providing the Service will be owned by Us or the licensors We have. Nothing in this section 5 will limit either party’s obligations with regard to data protection in section 8.1.
5.2. We acknowledge that the Customer’s Data is Your property and You reserve all intellectual property rights and/or other proprietary rights which may, at any time, subsist in the Customer’s Data. To the extent that any intellectual property rights and/or other proprietary rights in any of the Customer’s Data vest in Us by operation of law, such intellectual property rights and/or other proprietary rights shall be assigned by Us to You by operation of section 5.2 immediately upon the creation of such Customer’s Data.

5.3. We shall:
(a) preserve, so far as possible, the security and integrity of the Customer’s Data and prevent any loss, disclosure, theft, manipulation or interception of the Customer’s Data;
(b)  make secure back-up copies of the Customer’s Data on a regular basis as agreed with You; and
(c)  immediately notify You if any of the Customer’s Data is lost, becomes corrupted, is damaged or is deleted accidentally.

6. REPRESENTATIONS AND WARRANTIES
6.1. Each party warrants to the other that it has the full and sufficient right and authority to enter into these terms and conditions and to grant the rights and licences granted herein.
6.2. We warrant that the Services will be provided with reasonable care and skill.
6.3. You agree that We do not warrant or enter into any other term to the effect that any software will be entirely free from defects or that its operation will be entirely error free.
6.4. Apart from the terms set out in this section 6, no conditions, warranties or other terms apply to the Service or to anything else supplied under these terms and conditions. In particular, the terms implied by sections 3 to 5 of the supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these terms and conditions.

7. LIMITATION OF LIABILITY
7.1. Other than set out in section 7.4, neither party shall be liable (whether for breach of contract, tort (including without limitation negligence), or for any other reason) arising out of or in connection with these terms and conditions for any: (i) loss of profits, sales and/or revenue); (ii) goodwill and/or reputation; (iii) loss or waste of management or staff time; and/or (v) indirect, consequential or special loss.
7.2 We shall not be liable for any failure in the Service which arises because of any circumstances which we cannot reasonably be expected to control. The payment obligations You have will be suspended for the period of any such circumstances which causes a default or delay in the performance of the obligations We have to You under these terms and conditions.
7.3 Subject to section 7.1 and 7.4, the total aggregate liability We have to You under each Contract and in relation to anything which We may have done or not done in connection with the Contract concerned (and whether the liability arises because of breach of Contract, negligence or for any other reason) in respect of any Contract shall be limited to the greater of (i) 100% of all amounts payable by You under the Contract concerned in the relevant Contract Year and (ii) the amount of any fine incurred by You as a result of or in connection with such act or omission.
7.4 Neither party’s liability: (i) for death or personal injury caused by its negligence; (ii) for fraudulent misrepresentation or for any other fraudulent act or omission; and/or (iii) for any other liability which may not lawfully be excluded or limited, is excluded or limited by these terms and conditions, even if any other term of these terms and conditions would otherwise suggest that this might be the case.8. DATA PROTECTION
8.1 To the extent that We process any Personal Data (as defined in the Data Protection Act 1998) in connection with the Service, We will: (i) only process to the extent necessary to provide the Service; (ii) comply with instructions You give to Us; and (iii) keep it secure in accordance with the seventh principle in schedule 1 of the Data Protection Act 1998.
8.2 You agree that We may use the name of your organisation but not your logo in marketing materials associated with the Service and We agree that We will not disclose to any third party how You are using the service without written permission from You.

9. TERM AND TERMINATION
9.1. Each Contract shall commence on the date set out in the Order and will comprise an Initial Period, followed by the Minimum Term. Each contract shall renew automatically for successive terms equal in length to the Minimum Term unless terminated by either party giving the other not less than one month’s written notice prior to the next renewal date provided such notice cannot expire before the end of the Minimum Term. This clause 9.1 is without prejudice to the right We have to terminate under section 2.3.
9.2. During the Initial Period, the Contract can be terminated without obligation by serving notice in writing or email of the intent to terminated.
9.3 Following the Initial Period, each Contract will not affect any accrued rights or liabilities which either You or Us may have by the time termination takes effect.10. TRIAL SERVICES
10.1. The Service may be made available to You as a Trial Service and these same Terms and Conditions shall apply, subject to (i) any separate arrangements made with respect to the Term of the Trial Service and (ii) any other commercial arrangements agreed in respect of the Trial Service.11. GENERAL
11.1. You may not sub-licence or assign any of the rights or obligations which You have under these terms and conditions.
11.2. These terms and conditions and any relevant Order sets out all of the terms that have been agreed between You and Us in relation to the subjects covered by it. Subject to section 7.4, no other representations or terms shall apply or form part of any Contract between the parties. You acknowledge that You have not been influenced to enter into these terms and conditions by anything We have said or done or committed to do, except as expressly recorded herein.
11.3. In the event of any provision in these terms and conditions being held to be void, voidable or unenforceable this shall not affect the validity or enforceability of any other section of these terms and conditions or of the remainder of these terms and conditions as a whole.
11.4. No term of these terms and conditions is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to these terms and conditions.
11.5. These terms and conditions shall be governed and construed in accordance with English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with these terms and conditions, but We are also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce the intellectual property rights that We have.

12. CONFIDENTIALITY
12.1. Except to the extent set out in this section 12, or where disclosure is expressly permitted by any Contract, each party shall:(a)  treat the other party’s confidential information as confidential; and

(b)  not disclose the other party’s confidential information to any other person without the owner’s prior written consent.

12.2. Section 12.1 shall not apply to the extent that:

(a)  such information was in the possession of the party making the disclosure, without obligation of confidentiality, prior to its disclosure; or

(b)  such information was obtained from a third party without obligation of confidentiality; or

(c)  such information was already in the public domain at the time of disclosure otherwise than through a breach of any Contract; or

(d)  such information was independently developed without access to the other party’s confidential information.

13. AUDITS

13.1. We shall allow You and any auditors of or other advisers or an applicable Regulatory Body to access any of Our premises other than Our data centres, Our personnel and relevant records as may be reasonably required in order to:

(a) satisfy or fulfil any legal or regulatory obligation or legally enforceable request by any Regulatory Body; or

(b) undertake verification that the Services are being provided in accordance with any Contract.

13.2. Subject to Our confidentiality obligations, We shall provide You (and Your auditors and other advisers) with all reasonable co-operation, access and assistance in relation to each audit.