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Terms and Conditions

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Aizlewood Mill Business Park
Aizlewood Mill
Nursery Street
Sheffield
S3 8GG

 

Terms and Conditions - Current as at 06 May 2009 v1.1

These General Terms apply to all orders(s) accepted by us. These general terms together with the relevant Order(s) will form the Contract between us, once they have been signed by us. References in this contract to ‘us’ and ‘we’ will mean Intelesis Ltd. or any assignee of ours and references to ‘you’ will mean the customer names in the relevant Order(s)
1. Definitions
In this contract:

“Fault” means the inability of the Service to perform;

“Non Geographic Telephone Number” or “NGTN” means a number allocated to the Customer that is not dependant on the geographic location of the destination;

“Product Specification” means the specification for the Service set out in Exhibit A;

“Quarter” means three calendar months from 1 January, 1 April, 1 July or 1 October respectively;

“Service Charges” mean the charges for the Service set out in the Order Form for the Service, and include the

“Service Levels” mean the performance standards set out in Product Specification;

“Site(s)” mean the Customer locations within the UK specified by the Customer on the Order Form to which the
Service will be provided.
“Acceptable Use Policy” means our policy for the use of the internet related services set out on website, as may be revised by us from time to time by posting any updated version on our website.
“Agreed Usage” means the monthly minimum call traffic, if any, specified in the Order
“Charges” Means the charges payable by you to us for the provision of the services ass set out in the Order or any revised version of the order notified to you in accordance with clause 8.2, together with all applicable taxes and any interest due in accordance with clause 8.5.
Committed Period” Means in respect of each service, the minimum period of time (if any) that you have committed to receive and pay for that service as set out in the Order.
“Contract” – means these General terms and Conditions, the Order and any other document specifically incorporated into this contract in writing.
“Customer Equipment” means any hardware and/or software owned, controlled or licensed by you which is to be provided to us by you or otherwise made available for the purposes of providing the services.
“Facility Limit”: Means the usage, web space, bandwidth or other capacity of volume measure indicated in the Order as the applicable Facility Limited for the service.
“Intelesis Service Desk” means the helpdesk support to be provided by us as notified by us.
“Intelesis website” means the website located at Intelesis.co.uk or such other website as may be notified by us from time to time.
“Order” means a schedule which sets out the scope of the service, the relevant charges and any special terms which are particular to the service.
“Service Credits” means the amounts payable, if any, by us to you in accordance with clause 3 and the order.
“Service Failures” means any failure, error or defect in the provision of the services by us but excludes failures, errors or defects arising from, caused by or contributed to by your acts or omissions or third parties including other providers of telecommunications, computers or other equipment or services including internet services or any failure, error or defect arising as a result of causes beyond our reasonable control.
“Service” means the software provided by us to you for the purposes of enabling you to use the service including all associated documentation.
“Start Date” means the target date for the commencement of the provision of the services to you.
2. Services provided by us
We will provide the services in accordance with the terms of this contract.
2.2 We will use reasonable skill and care when providing the services.
The services are provided for use by you in the course of your business.
3 Service Levels
3.1 We do not guarantee that the services will be continuously available to you or free from service failures
3.2 Where you believe that you are experiencing a service failure you must immediately report this to us via the Intelesis service desk, providing sufficient information to enable us to investigate the problem. We will log the time of receipt of all such reports.
3.3 Where we spend time investigating the a fault reported by you and conclude that there has been no service failure we reserve the right to charge you for all reasonable costs and expenses incurred in investigating the report and you agree to pay such charges.
3.4 Where, as a result of a service failure, an applicable Service Level specified in the Order is not achieved we will, subject to clause 8.6, pay to you a service credit by issuing a credit note to you for a sum equivalent to the amount of the service credit.
3.5 The duration of any service failure, for the purposes of calculating service credits, will be measured from the time your fault report is logged by the Intelesis helpdesk to the time we can demonstrate that the service has been restored.
3.6 Service Credits will be the maximum extent of our liability and your exclusive remedy of any failure to achieve Service Levels, and all other rights, remedies and liabilities are excluded to the maximum extent permitted at law.
4. Your use of services
You agree that you will not use the services in way which would:
4.1 a) Contravene or cause us to contravene any laws, including but not limited to, The Telecommunications Act 1984.
b) Contravene our Acceptable Use Policy(where applicable);
c) Compromise the security of our equipment or other systems, including by introducing viruses or failing to employ appropriate security procedures;
d) Enable or permit unauthorised access by you or third parties to data stored on our network;
e) Cause a degradation of service to any of our customers;
f) Involve the sending of unsolicited marketing or advertising materials;
g) Result in the transmission or storage of any material of a pornographic, obscene, defamatory, menacing of offensive nature or which would result in the breach of any third party’s intellectual property rights, confidential information or privacy;
h) breach or cause us to breach any applicable data protection legislation including, but not limited to, the Data Protection Act 1988;
i) exceed your Facility Limit or caused an overload on our network.
4.2 You will Indemnify us against any claims, proceedings or threatened proceedings from third parties and against any loss or damage suffered by us arising from any breach of your obligations under this contract, including this cause 4, and all of the costs and expenses reasonably incurred by us in investigating and defending ourselves in relation to any such claims, proceedings or threatened proceedings
4.3 You will ensure that your usage of the services does exceed the facility limit or cause congestion or otherwise disrupt our network. You will give us not less than 2 days written notice of any advertising, promotion or other campaigns which may result in abnormal demands being placed on our network.
4.4 You are solely responsible for safeguarding your data by taking back up copies, maintaining a disaster recovery process and through other means you believe appropriate.
4.5 To enable us to perform our obligations under this contract, you will obtain all requisite licences, consents and permissions and permit or procure permission for us or agents to have access to your premises and will provide such reasonable assistance and information as we request from time to time. We will routinely work during office hours. Any request by us to carry out at other times may be refused by you. Any request by you that we carry out work at other times may be refused by us, but if accepted such work will be charged to you at our then current standard rates.
5.0 Allocation and Use of telephone Numbers
5.1 Where we allocate you any telephone numbers or codes as part of the services, you acknowledge that you will not acquire any legal, equitable or other rights in relation to any numbers or codes. We may on giving you notice withdraw or change any such numbers or codes. You may not sell or transfer or seek to sell or transfer any numbers or codes allocated by us, You may port numbers to us and may also port numbers to other carriers with whom we have porting agreements. All intellectual property rights or other rights in any numbers or codes allocated by us shall at all times, as between ourselves and you, remain vested in us.
5.2 Subject to these terms and conditions, Intelesis shall provide the Service at the Site(s) on the Ready For Service Date or such other date as may be agreed by the parties.

5.3 Intelesis shall provide (subject to availability from OFCOM), such FreeCall & , LowCall & and NationalCall numbers at the category and value as stated on the Order Form. The Service may include the routing of incoming calls via Intelesis’ Network or its nominated carriers, which will contain such functionality as specified by Intelesis to the Customer.

Where Intelesis provides assistance or other services to the Customer at the Customer's request (including call-outs resulting from a reported Fault where no Fault is found), Intelesis reserves the right to charge the Customer for such assistance or services at Intelesis's standard rates then in force. Intelesis's helpdesk
will contact and liaise with the Customer regarding any perceived Fault and issuing of NGTNs. Once the Customer and Intelesis have signed the Order Form cancellation charges may apply as detailed in the Order Form.

Service Commencement

5.4 Intelesis shall carry out such tests as it deems appropriate in order to confirm that the Service is ready for use at the Site(s) and is operating in accordance with the Product Specification. Following satisfactory completion of such tests Intelesis shall inform the Customer that the Service is ready for use (the “Service
Commencement Date”).

Customer's Responsibilities
5.5 In addition to any specific responsibilities set out elsewhere in the Master Agreement, the Customer must:
5.6 ensure that working conditions for Intelesiss employees and agents working on the Site(s) comply with
all local legislation relating to the workplace.
5.7 resolve all Site related problems in relation to the Customer Equipment, Intelesis Equipment and the Service;
5.8 take full responsibility for the safe use and custody of Intelesis Equipment at the Site;
5.9 be responsible for (a) any reasonable expenses incurred by Intelesis in contacting any third party to notify them of any reasonable requirements relating to the connection of third party services to the Network and (b) any reasonable costs incurred by Intelesis incurred with the modification, change, suspension, maintenance, expansion, upgrade, repair or replacement of any part of the Service, which arises as a result of negligence or default by the Customer;
5.10 use, or permit any other person to use the Service only for the purpose for which the Service is provided.
5.11 not, and shall not permit any person to (a) use the Service in any manner which violates or infringes the rights of any person, firm or company (including but not limited to rights of copyright or confidentiality) or violates or infringes any statutory duty or obligation or any duty or obligation in contract, tort or otherwise, to any third party; or (b) use the Service for the transmission of any material which is defamatory, offensive or of an obscene
or menacing character.
5.12 Intelesis reserves the right to disconnect any Customer Equipment, without incurring any liability to Customer (a) if the Customer does not fulfill its obligation under this Section 4 or (b) if, in Intelesis’s reasonable opinion, the Customer Equipment is (a) liable to cause death or personal injury to Intelesis employees, (b) liable to damage to the Intelesis Network, or (c) liable to materially to impair the quality of services provided by Intelesis to others over its Network.
Customer Information and Co-operation
5.13 The Customer must give Intelesis all necessary information and co-operation that Intelesis may reasonably require from time to time to enable Intelesis to comply with its obligations under these terms and conditions. This shall include but not be limited to:
5.14 notifying Intelesis of the name and contact details of a primary contact at each Site who will be
responsible for all issues relating to the operation and/or management of the Service;
5.15 providing copies of all Customer-controlled documentation necessary for Intelesis to discharge it's obligations under these terms and conditions;
5.16 following Intelesis agreed procedures for Fault management and Service ordering; and
5.17 granting reasonable access to Intelesis at all times to the Sites to enable Intelesis to provide the
Service.

Intelesis UK NGNT Service - Fraud
5.19 The Customer shall comply with all reasonable recommendations submitted to it by Intelesis with a view to minimising the risk of fraudulent use of the Service. Intelesis shall have the right to recover from the Customer losses which Intelesis incurs as a result of fraudulent activity by users of the Service introduced
or authorised by the Customer. Intelesis may suspend the Service and introduce reasonable Service restrictions and security procedures and measures where it has reasonable grounds for believing that there is fraudulent usage, but will use reasonable endeavours to give the Customer reasonable notice prior to any such
suspension.

Alteration to Numbering
5.20 Intelesis shall have the right without incurring any liability to Customer, to alter any name, code or number made available to Customer by Intelesis in connection with the Service.

6.0 Charges and Payments
6.1 You will pay us the Charges as specified in the order or as subsequently notified to you in accordance with clause 6.2 Charges will be payable with effect from the date that a service is first made available to you for commercial use.
6.2 We may change the charges for any service by giving you 30 days written notice of such change. The revised Charges will apply to all services provided after the effective date of the notice of change.
6.3 All charges are stated exclusively of Value Added Tax (VAT) or other applicable taxes. You will be responsible for paying VAT and other applicable taxes which will be included in our invoices at the applicable rate(s).
6.4 We will issue invoices for the services in accordance with the payment terms as specified in the Order.
6.5 You will pay invoices within 14 days of the date of the invoice, unless otherwise agreed. We may interest on all overdue amounts from time-to-time on a daily basis at a rate of 4% above the base rate of the Royal Bank Of Scotland plc. to run from the due date of payment until receipt by us of the full amount (including any accrued interest) whether before or after judgement in respect of the overdue amount.
6.6. Where under this contract a service credit or other sum of money becomes payable by us to you, we shall be entitled to deduct that sum due from you to us from time to time. We will show any such deductions as a credit in the invoice issued by us following the due date for payment of the sum owed by us to you.
6.7 Where the service comprises or includes services in respect of which are payable by us to you, we will notify you of the amount of rebate due for each calendar month or other applicable period within 15 days of the end of each billing period. It is then your responsibility to issue an invoice to us for payment of the rebate due. We will pay the rebate 45 days following the date of your invoice or (if later) within 7 days of the date of receipt by us of sums from British Telecommunications plc. (or other relevant carrier) paid to us in respect of the applicable service. You do not have the right to deduct rebates payable by us to you from the payment of charges due from you to us.
6.8 Where it has been agreed that non-geographic number rebates will become payable to your organisation, these rebates will be paid in a timely fashion so long as all sub-clauses have been adhered to in clauses 6.0 – 6.7
7.0 Changes to Services and Contract
We may at any time on 30 days written notice to you vary any of the General terms and conditions, the charges or any other provisions of this contract including the technical specifications
8.0 Security and BackUp Services
You are responsible for the security of your use of the services including, but not limited to, protecting all passwords, backing up all data, employing all security devices, including virus checking software, and having disaster recovery processes in place.
8.2 Where as part of a service we provide our Equipment or services which have the principal purpose of safeguarding the security of the services received by you, we will use reasonable efforts to ensure that, as at the date of installation or our Equipment or the provision of the services, our Equipment and/or services comply with the agreed specifications for our Equipment and / or services. However, we provide no guarantee or warranty with respect to the security of the services.
8.3 Where you are or become aware of any matters which you know or ought reasonably be expected to know constitute a threat to the security of any services you will immediately advise of any such matters.
9.0 Term and Start Date
9.1 The contract will commence on the date when both parties have executed the Order and will continue for the committed period (if any) and thereafter until terminated in accordance with its terms.
9.2 We will use our reasonable efforts to begin providing the services from the start date, if any, stated in the order. However, the start date and any other dates given in this contract are estimates and are provided for planning purposes only. We will have no liability for any failure to meet the start date as time is not of the essence in relation to any matter under this contract.
10.0 Termination
10.1 If you fail to pay any charges or fail to comply with your obligations under clause 8 these failures will be deemed to be material breaches for the purposes of clause 10.2
10.2 We may terminate this contract with immediate effect by notice in writing if you:
a) Fail to pay sums due to us within 7 days of receiving written notice from us indicating the sums due and demanding payment
b) fail to reach the agreed usage for a period of 90 consecutive days;
c) are in material breach of this contract which breach is capable of remedy and fail to remedy that breach within 30 days of receiving the notice specifying the breach;
d) are in material breach of this contract and that breach cannot be remedied
e) are in consistent breaches of the contract
f) have any licences under which you have the right to run your telecommunication system and connect to our system revoked or amended, or such licence otherwise ceases to be valid
g) make any voluntary arrangements with your creditors or become subject to an administrative order or go into liquidation, whether voluntary or compulsory (other than for the purposes of reconstruction or amalgamation), or an encumbrance takes possession of a receiver is appointed in respect of any of your assets.
H) In the event of termination any us in accordance with this clause during the committed period you will, in addition to paying any unpaid charges due as at the date of termination, be liable to pay us the cancellation charges as set out in the order.
i) We may terminate this contact if the Intelesis licences are terminated or expire or are modified in any way which has a material impact on our ability to provide the services or any of them.
j) On termination of this contract each party will return to the other party any confidential information which it has in its possession.
11.0 Cancellation and Suspension
11.1 You may cancel any individual service or this contract at any time by giving us 45 days written notice of cancellation, unless otherwise agreed by the parties.
11.2 Subject to clause 11.3, where you cancel a service during the Committed Period for that service or cancel the contract during the Committed period for any service, you will pay the charges applicable to the unexpired portion of the committed period(s).
11.3 Where you cancel a service or the contract as a result of changes made to this contract or to the services by us in accordance with clauses in charges and payments section, and where the changes have a material adverse effect on your enjoyment of the relevant services, you will not be liable for any charges arising as a direct result of such cancellation, but you will remain liable to pay any charges due and payable.

12.0 Force Majeure

12.1 In the event of any party being unable to perform any part of this Agreement in accordance with its terms and such failure is caused by any circumstances beyond its reasonable control (including but not limited to flood, fire, earthquake, war, tempest, hurricane, government restrictions, legislation, act of God or any other occurrence of a like or unlike nature) then it shall be excused from performance for a period which the parties agree in writing is reasonable under the prevailing circumstances.

12.2 In the event that an event or events of Force Majeure prevents the performance of the Agreement for a period of more than three (3) months, then either party may terminate the Agreement on written notice.

13.0 Confidentiality

13.1 Both parties shall exercise the utmost care not to disclose at any time whether during the continuance of this Agreement or after its termination to any person, firm or corporation any confidential information, know-how, data, drawings or specifications belonging to the other party in any manner whatsoever except:

13.2 to the extent that the receiving party can show that such information is publicly available, through no fault of the receiving party;

i) to the extent that the receiving party can show that such information was in its possession prior to the date of disclosure by the disclosing party;

ii) to the extent that the receiving party may subsequently receive such information from any third party, who is entitled without restriction as to disclosure to disclose such information;

iii) where the receiving party receives written consent to disclose from the disclosing party;

iv) where disclosure is necessary by compulsion of law.

To this end The Parties shall not allow their employees, or any other person acting upon their behalf, to copy such business information or disclose to any third party, without the other Parties prior written consent. The Parties shall not disseminate any such information among its employees, or persons acting upon their behalf, except to the extent strictly necessary to serve The Parties mutual interests and shall use reasonable endeavours to ensure that no person copies, discloses or uses confidential information except as permitted herein. Each Party shall use at least the same degree of care in safeguarding such confidential business information as in safeguarding its own information of a similar nature

14.0 Termination

14.1 Either Party may terminate this Agreement by providing the other party with 12 months’ written notice, such notice to expire on an anniversary of the Commencement Date.

14.2 Any termination of this Agreement shall be without prejudice to any rights of the parties accrued up to the date of termination. In the event that either party shall have a manager, receiver, administrative receiver or like person appointed over any or all of its assets or if an order is made or a resolution passed for winding up of either party, then unless such order or resolution is part of a scheme of reorganisation or amalgamation previously approved of by the other party, the other party shall be at liberty to :

i) cancel this Agreement summarily by notice but without prejudice to its existing rights, or to

ii) give any such appointed person the option of fulfilling this Agreement.

14.3 Not withstanding the conditions of clause 5.1 Intelesis or the client as appropriate may terminate this Agreement forthwith by notice in writing to the other if:

a) liquidator has been appointed of the whole or any part to the assets or undertaking of the other party; or an order, petition, application, proceeding, meeting or resolution has been made, presented, brought, called or passed for placing of the other party in liquidation, administration or receivership or for the making of a voluntary arrangement in relation to such other party; or the other party is insolvent, has stopped payment of or is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.

b) The other party ceases or threatens to cease carrying on business

15.0 Disputes

15.1 In the event of a dispute of difference, arising between The Parties, in relation to the Agreement, which cannot be settled amicably, either party shall, as soon as reasonably practicable, give to the other notice of the existence of such dispute or difference, specifying its nature and the point at issue and the same shall be referred to the arbitration of a person to be agreed upon. Intelesis subscribes to the dispute resolution body for the industry Otelo, the details of which can be found in the customer relations section of our web-site. Failing agreement upon such person within 30 days after such notice, the arbitration shall be conducted by some person appointed, on the application of either party, by the Director General of OFCOM.

14.2 The award of such arbitrator shall be final and binding upon the parties, and the cost of such arbitration shall be determined by such award.
14.3 Performance of this Agreement shall continue during arbitration proceedings. No payment due or payable shall be withheld on account of a pending reference to arbitration.
16.0 Law

16.1 This Agreement shall be governed and construed according to English Law and subject to the exclusive jurisdiction of the Courts of England and Wales.

17.0 Notices

17.1 Any notice given hereunder shall be in writing and shall be delivered by hand or sent by first class post or facsimile transmission to the address of the party concerned set out below (or such other address as may be notified in writing to the other party). Any notice shall be deemed to be served, if delivered by hand, at the time of delivery, or if posted at the expiration of 2 working days from the date of posting or, if sent by facsimile transmission, at the expiration of 12 hours after despatch and in providing such service it shall be sufficient to prove that the delivery was properly addressed and was posted as a prepaid first class letter or that the facsimile was properly addressed and despatched as may be.