Callwell Membership Terms

Posted 14 October 2016

These are the standard membership terms  which set out the basis upon which we “Callwell” will provide telephone and email “Services” for you “The Customer”, unless they are specifically amended by the applicable engagement letter accepted in writing by you and any subsequent correspondence between us and you.

Any service received by you from Callwell are subject to these terms of business.

  1. Callwell's obligations
    1. Callwell undertakes that the Services will be performed with reasonable skill and care.
    2. In the event that the Services do not comply with the description and documentation provided by Callwell, Callwell will, at its expense, use all reasonable commercial endeavours to correct any non-conformance promptly, or provide the customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the customer’s sole and exclusive remedy for any breach of the undertaking set out in this clause.
    3. Notwithstanding the foregoing, Callwell:
      1. does not warrant that the any of the Services will be uninterrupted or error-free; nor that the Services and/or the information obtained by The Customer through the Services will meet The Customer requirements; and
      2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and The Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    4. Callwell warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations
  2. The Customer rights & responsibilities
    1. In consideration of the Fee Callwell grants to The Customer a non-exclusive right to use the Services and advertise the fact that the Services are used under the Callwell brand.
    2. The Customer shall be permitted to allow such employees, agents or sub contractors access to the Services as are reasonably necessary in order for The Customer to properly use the Services.
  3. The Customer shall:
    1. provide Callwell with all necessary co-operation in relation to these terms; and all necessary access to such information as may be required by Callwell in order to render the Services, including but not limited to Customer Data, security access information and configuration services;
    2. comply with all applicable laws and regulations with respect to its activities under these terms;
    3. carry out all other Customer responsibilities set out in these terms in a timely and efficient manner. In the event of any delays in The Customer provision of such assistance as agreed by the parties, Callwell may adjust any agreed timetable or delivery schedule as reasonably necessary;
    4. obtain and shall maintain all necessary licences, consents, and permissions necessary for Callwell, its contractors and agents to perform their obligations under these terms, including without limitation the Services;
    5. ensure that its network (including network connections and telecommunications links) and systems comply with the relevant specifications provided by Callwell from time to time;
    6. be solely responsible for procuring and maintaining all network connections and telecommunications links which are necessary for the proper provision of the Services, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to The Customer network connections or telecommunications links or caused by the internet;
    7. Keep any passwords provided by Callwell in connection with the Services secure and confidential and The Customer hereby acknowledges and agrees that it shall be responsible for anything done under its password irrespective of whether such things were done by The Customer, its authorised employees or agents or another third party; 
    8. use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Callwell; and
    9. not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services.
    10. not use any third party software to add functionality to the Services;
    11. not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or any part of them available to any third party except the authorised Users, or attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause.
    12. not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
      6. causes damage or injury to any person or property;
    13. and Callwell reserves the right, without liability to The Customer, to disable The Customer access to any material that breaches the provisions of this clause.
    14. accept that the contract starts at the moment Callwell connects their system to the Customer's telephone system, regardless of whether the Customer has moved any or all of their lead sources across to the Callwell system.
  4. Callwell shall:
    1. use commercially reasonable endeavours to make the Services available to The Customer as soon as reasonably practicable and avoid any planned maintenance unless already notified to The Customer.
    2. notify The Customer of any planned maintenance and wherever possible avoid carrying out planned maintenance during The Customers usual working hours or on any day on which The Customer has already notified Callwell.
    3. notify The Customer as soon as reasonably practicable and shall use reasonable endeavours to avoid disrupting the Services during the Customers usual working hours.
  5. Customer data
    1. The Customer shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
    2. Callwell will have the right to use the Customers data to provide statistical information on the performance of the service but will not have the right to contact any individual client of the Customer unless agreed by the Customer in writing.
    3. Callwell shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Callwell to perform services related to Customer Data maintenance and back-up).
    4. Callwell will on certain occasions record calls solely to monitor the performance of the service. Call recording will be operated in accordance with current legislation and The Customer will ensure that any call recording operated by them also complies with current legislation.
    5. If Callwell processes any personal data on The Customer’s behalf when performing its obligations under these terms, the parties record their intention that The Customer shall be the data controller and Callwell shall be a data processor and in any such case:
    6. The Customer shall ensure that it is entitled to transfer the relevant personal data to Callwell so that Callwell may lawfully use, process and transfer the personal data in accordance with these terms on The Customer behalf;
    7. The Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
    8. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage. 
    9. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage. 
    10. where The Customer give unlawful instructions it shall indemnify Callwell and hold it harmless to the full extent of any liability, loss, damages, costs or expenses incurred as a result of Callwell following such unlawful instructions; and
      1. where The Customer give unlawful instructions it shall indemnify Callwell and hold it harmless to the full extent of any liability, loss, damages, costs or expenses incurred as a result of Callwell following such unlawful instructions; and
      2. where The Customer give unlawful instructions it shall indemnify Callwell and hold it harmless to the full extent of any liability, loss, damages, costs or expenses incurred as a result of Callwell following such unlawful instructions; and
      3. where The Customer give unlawful instructions it shall indemnify Callwell and hold it harmless to the full extent of any liability, loss, damages, costs or expenses incurred as a result of Callwell following such unlawful instructions; and
      4. The Customer shall process the personal data only in accordance with the terms of these terms and any lawful instructions reasonably given by The Customer from time to time;
  6. Fees & Payment
    1. The Customer shall pay the Fees to Callwell fas indicated in the 'Order Summary'.
    2. The term of membership will be for an initial period of 1 year and can be terminated thereafter on 1 month’s notice.
    3. The Customer may elect to upgrade a plan at anytime and backdate for up to 1 month.
    4. Callwell’s ‘Unlimited’ plan is subject to a ‘Fair Use Policy’, which prompts a review if the customer consistently, over a period of 3 months, generates more than 400 minutes of calls per month per office across those paying for this Package. Callwell reserves the right to consider that the customer has (an) additional branch(es) and charge accordingly.
    5. The customer may select a lower tariff during the term of the contract by serving notice of 1 month, subject to approval.
    6. Were any branch to generate consistently more than its ‘Number of calls limit’ per month across a 3-month period, Callwell reserves the right to upgrade the Fee to that of a more appropriate Package.
    7. The Customer shall have an option to cancel the contract with 1 month’s notice on the date exactly 2 months after the date of the signing of this agreement (the ‘Break Clause’), unless a discount to the standard published rates has been received in which case the Customer may not cancel the contract within the first 12 months.
    8. At the end of each month Callwell shall invoice The Customer for the Fee which shall be at the rate quoted by Callwell plus VAT where applicable and deduct payment from the Customer within 14 days by bank direct debit.
    9. All invoices shall be payable within 14 days after the date of such invoice.
    10. If Callwell has not received payment within 14 days after the due date then, without prejudice to any other rights and remedies of Callwell:
      1. It may, without liability to The Customer, disable The Customer passwords, accounts and access to all or part of the Services and Callwell shall be under no obligation to provide any or all of the Services to The Customer while any invoices remain unpaid;
      2. interest and other compensation shall accrue and shall be payable on such due amounts in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.  The accrual of such interest shall commence on the due date and shall continue until fully paid, whether before or after judgment; and
      3. where Callwell considers it necessary to engage the services of any debt collection agency in respect of any unpaid invoices, Callwell shall be entitled recover the costs of such services, and any other relevant expenses involved in recovering its debt, from The Customer.
      4. All amounts and fees stated or referred to in these terms shall be payable in pounds sterling and are non-refundable.
  7. Proprietary rights
    1. The Customer acknowledges and agrees that Callwell and/or its licensors own all intellectual property rights in the Services and each element of the Services including any statistically information derived from the Customers data. Except as expressly stated these terms does not grant The Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or any part of them.
    2. Callwell confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, these terms.
  8. Confidentiality
    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms.  A party's Confidential Information shall not be deemed to include information that:
      1. is or becomes publicly known other than through any act or omission of the receiving party;
      2. was in the other party's lawful possession before the disclosure;
      3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
      4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
      5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    2. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of these terms.
    3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these terms.
  9. Indemnity
    1. The Customer shall defend, indemnify and hold harmless Callwell against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with The Customer use of the Services.
    2. Callwell shall defend The Customer, its officers, directors and employees against any claim that the Services or any of the Services’ constituent parts infringes any United Kingdom patent (effective as of the date of these terms), copyright, trade mark or database right, and shall indemnify The Customer for any amounts awarded against The Customer in judgment or settlement of such claims, provided that:
      1. Callwell is given prompt notice of any such claim;
      2. The Customer provides reasonable co-operation to Callwell in the defence and settlement of such claim, at Callwell's expense; and
      3. Callwell is given sole authority to defend or settle the claim.
  10. Limitation of liability
    1. The Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. Callwell shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Callwell by The Customer in connection with the Services, or any actions taken by Callwell at The Customer direction;
    2. Callwell excludes liability for loss of profit, loss of reputation and loss of anticipated savings (whether direct or indirect) and costs, expenses, damages and losses of an indirect and consequential nature, suffered or incurred by The Customer arising out of or in connection with Callwell’s breach or negligent performance or non-performance. 
    3. The maximum liability of Callwell to The Customer shall be a sum no greater than 100% of the Fee due to Callwell in the calendar month in which the liability arises.
    4. The Customer shall indemnify Callwell for all direct costs, expenses, damages and losses suffered or incurred by Callwell, and indemnify and hold harmless Callwell from any claim from a third party in each case, arising out of or in connection with The Customer breach or negligent performance or non-performance to the full extent of such liability.
    5. Nothing in these terms shall exclude liability for:
      1. death or personal injury caused by negligence of either party or its officers, employees, contractors or agents;
      2. fraud or fraudulent misrepresentation; or
      3. any other liability which may not be excluded by law.
  11. Force majeure
    1. Callwell shall have no liability to The Customer under these terms if it is prevented from or delayed in performing its obligations under these terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Callwell or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, extreme adverse weather conditions or default of suppliers or sub-contractors, provided that The Customer  is notified of such an event and its expected duration.
  12. Waiver
    1. A waiver of any right under these terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
    2. Unless specifically provided otherwise, rights arising under these terms are cumulative and do not exclude rights provided by law.
  13. General
    1. If any provision (or part of a provision) of these terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, that provision or part provision shall be deemed deleted and the remaining provision shall continue in full force and effect.
    2. These terms and conditions and any documents referred to, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
    3. The Customer shall not, without the prior written consent of Callwell, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms.
    4. Callwell may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms.
    5. Each of the parties acknowledges and agrees that in agreeing these terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms or not) relating to the subject matter of these terms, other than as expressly set out in these terms.
    6. Nothing in these terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
    7. These terms of business are subject to review from time to time. A copy of any revised terms of business will be sent to you and/or made available at and any revised terms of business will supersede previous versions.
    8. These terms do not confer any rights on any person or party (other than the parties to these terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
    9. These terms and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of England and Wales and the parties submit to the non exclusive jurisdiction of the courts of England.
    10. Callwell's technology is 'Patent Pending' in Great Britain publication number 1618657.9 and the trademark 'Callwell' is protected under by UK No: UK00003016802.
    11. Callwell is a trading name of Callwell Limited, a limited liability company incorporated in England and Wales with registered number 8547815 whose registered office is at Lake House, Market Hill, Royston, Hertfordshire SG8 9JN

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