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TMTerms & Conditions
1.1
IN
these conditions: “the Supplier” means ITSec Limited trading as Fonyo “the Contract” means each and every Contract between
the Supplier and the Customer for the sale and supply of Equipment. “the
Customer” means the person, firm or company with whom the contract is made by
the Supplier.
“the
Equipment” means any equipment, machinery, parts, spares, software, airtime and
any other goods or services sold or supplied by the Supplier.
“the
Warranty Period” means: -
a) Whatever warranty is offered by the manufacturer of the sold goods.
b) D.O.A: Goods that arrive that are dead on arrival can be returned to the Supplier under the Supplier’s returns procedure for credit or replacement only in line with the manufacturer’s warranty.
1.2
THESE
Conditions apply to all Contracts entered into by the Supplier to sell or
supply equipment and shall prevail over any terms put forward by the Customer
unless the Supplier expressly agrees to them in writing. No conduct by the Supplier
shall be deemed to constitute acceptance of any terms put forward by the
Customer and no concession made or latitude allowed by the Supplier to the
Customer shall affect the strict rights of the Supplier under Contract.
1.3
THESE
Conditions may only be varied with the express written agreement of the Supplier.
2.1 UNLESS otherwise specified prices payable for the Equipment are exclusive of carriage and accordingly the Supplier reserves the right to require payment of delivery charges, VAT and other taxes, insurance costs, customs duties, special handling charges and/or packaging charges as appropriate.
2.2
THE
Supplier shall have the right at any time to revise prices to take into account
increases in costs including (without limitation) costs of agreed changes in
taxes, duties, levies or exchange rates or costs arising as a result of site
conditions, delays, interruptions, lack of information and any other factor
beyond the Supplier’s control.
3.1 NO order shall be accepted by the Supplier unless first confirmed by the Customer either by email, fax, post or by telephone. All orders must carry a customer purchase order number.
3.2 THE Customer shall, on placing an order, state if he requires the Supplier to arrange carriage and if so the delivery address. The Supplier shall be entitled to make any contract of carriage and/or insurance on behalf of the Customer as the Supplier considers necessary and will be under no obligation to notify the Customer thereof. The Customer will be responsible for complying with all conditions and requirements of the carriers. Unless otherwise agreed by the Supplier delivery of the Equipment will be ex-works.
3.3 ALL times or dates given for delivery of the Equipment are given in good faith and shall not be of the essence of any Contract.
3.4
THE
Supplier shall give the Customer notice when the Equipment is ready for
delivery. If the Customer refuses or fails to arrange collection or take
delivery (as the case may be) of Equipment ordered within seven days of service
of that notice then
a)
the
Customer will bear the risk of any loss or damage to the Equipment after expiry
of that time
b)
the
Supplier shall be entitled to immediate payment in full for the Equipment which
is the subject of the Order and
c)
the
Customer shall in addition to the invoice price pay all costs of storage and
any additional costs incurred as a result of such refusal or failure. The Supplier
shall not be liable to the Customer for any loss or damage to the Equipment
caused by their storage.
3.5
THE
Supplier may make and the Customer shall accept part deliveries of Equipment
order. Each delivery shall be considered to be the subject of a separate
Contract and failure by the Supplier to make any one or more deliveries in
accordance with the Contract or any claim by the Customer in respect of any one
or more deliveries shall not entitle the Customer to treat the Contract as a
whole repudiated.
4.1 THE Customer will accept the Equipment even if it is delivered late and late delivery will not entitle the Customer to terminate the Contract.
4.2
THE
Customer shall inspect the Equipment as soon after delivery as is reasonably
practicable and will notify the Supplier in writing of any shortage of supply
deficiency or damage to the Equipment within five days of delivery. If the
Customer fails to comply with this clause the Supplier shall be under no legal
obligation in respect of any alleged shortage discrepancy or damage.
5.1 FROM the time the Equipment leaves the Supplier’s premises, whether this be by way of collection by the Customer or receipt by carriers (as the case may be), the risk in the Equipment shall pass to the Customer.
6.1 IF Credit terms have been agreed in writing by the Supplier, payment shall be made in full without any deduction or set-off within 7 days of the invoice unless otherwise agreed in writing by the Supplier.
6.2
IF
credit terms have not been agreed by the Supplier then payment shall be made in
full without any deduction or set-off at the time of placing the order for the
Equipment.
6.3
IF
the Customer shall make or offer to make any arrangement or composition with
his creditors, or commit any act of bankruptcy, or if any bankruptcy petition
be presented against him, or (if the Customer is a Limited Supplier) if any
resolution or petition to wind up such Supplier shall be passed or presented,
or if a receiver or administrator of the whole or any part of such Supplier’s
undertaking property or assets shall be appointed then if delivery of the
Equipment has been effected, the invoice shall immediately become due and
payable by the Customer; if delivery has not been so effected then the Supplier
may, at its option, cancel the Contract or cancel or suspend delivery.
6.4
NOTWITHSTANDING
any of the terms and conditions hereof, the time of payment shall be of the
essence of the Contract.
6.5 INTEREST shall be payable on overdue accounts at the rate of two percent per month or part thereof on the amount for the time being outstanding from the due date of payment thereof until receipt by the Supplier whether before or after judgement.
7.1 All drawings specification and technical documents issued by the Supplier at any time in relation to the Contract are issued solely for the Customers use in connection with the Equipment and shall not be copied, reproduced or communicated to any third party without the Supplier’s express written agreement.
7.2
Equipment
must be operated in line with the manufacturers stated environmental parameters
as to temperature, humidity and other conditions.
8.1 The Supplier will make good by repair or exchange (at its option) such of the Equipment or part thereof which is shown to its reasonable satisfaction to have proved defective in materials or workmanship during the warranty period on the following terms:
a) Any damage, defect in or failure of the Equipment must be notified to the Supplier in writing as soon as practicable and in any event no later than five days after delivery.
b) The Equipment must be unmodified, have been properly used under normal working conditions and have been properly installed and maintained.
c) Before returning the Equipment or any part thereof the Customer must obtain a return authorisation number from the Supplier and details of the Supplier’s returns procedure, which must be fully complied with.
d) The Equipment or part to be returned must be delivered to the Supplier’s premises in its original packaging, together with supporting documentation showing full description of the alleged fault and quoting the relevant returns umber. In the event that the customer fails to comply with this requirement then the Supplier will be entitled to a charge of 15% handling fee upon authorised return of the Equipment.
e) All delivery charges for carriage to and from the Supplier’s premises must be paid for by the Customer, unless greed otherwise.
f) Where parts only are returned, the Supplier shall not be responsible for installing any such art after repair or exchange.
g) If it so elects, the Supplier may require the Customer to return the Equipment or part, direct to the manufacturer for repair or exchange, in which case such repair or exchange on the part of the manufacturer shall satisfy the Supplier’s obligations under this clause 8.
h) The foregoing warranty shall only apply to any replacement Equipment or parts thereof supplied by the Supplier under this warranty for the balance of the warranty period applicable to the Equipment sold.
8.2 The Supplier gives no undertaking or warranty that the Equipment is fit for any particular purpose and the customer must rely entirely on his own skill and judgement in evaluating the suitability of the Equipment for his purpose.
8.3 Subject to the foregoing all conditions, terms and representations, express or implied by statute, common law, custom or usage in relation to the equipment are hereby excluded and the Supplier shall be under no ability to the Customer for any indirect, special or consequential loss, damage or injury resulting from defective atrial faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Supplier, its employees or agents.
8.4 In no event shall the Supplier be under liability whatsoever and howsoever arising for any loss or use or loss of profits, interruption of business or any other indirect special or consequential loss of any type arising or alleged to have risen out of any negligent act or default of the Supplier in respect of the Supplier’s obligations under such Contract.
8.5 If the Customer deals as a consumer as defined in S.12 of the Unfair Contract Terms Act 1977 the above visions shall not apply and the Customers statutory rights under the Sale of Goods Act will be affected.
8.6 The Supplier does not exclude liability for death or personal injury to the extent that it is caused by the negligence of the Supplier, its employees, or agents nor for breach of any of the undertakings as to the title implied not the Contract by S.12 of the Sales of Goods Act 1979.
9.1
The
Supplier shall incur no liability to the Customer for misrepresentations by
virtue of any statement made by or on behalf of the Supplier prior to the
Contract whether orally or in any letter document or sales literature and the
Customer shall not be entitled to rescind the Contract on the grounds of any
such misrepresentation.
10.1 The Supplier shall be under no
obligation to accept return of any Equipment other than as provided in Clause 8.
If to withstanding, the Supplier shall in any particular case agree to accept
return of ITSec Limited 46-48 Churchgate Leicester LE1 4AJ, Equipment which is
not defective then it shall only do so on terms that:
a)
The
Customer shall pay a sum in respect of the costs so incurred by the Supplier
equal to twenty-five percent of the full invoice price subject to a minimum
hare of £30
b)
the
Customer shall obtain a returns authorisation number from the Supplier and
comply with the Supplier’s returns procedure and
c) The Equipment must be delivered to the Supplier’s premises in its original packaging.
11.1 WHEN the Equipment supplied by the Supplier is to be used in conjunction with British Telecom, or other Network providers lines or apparatus, then the following additional conditions shall apply:
a) BRITISH Telecom or there Network Providers shall have the right to require modifications to be carried out to Equipment, which is already installed, and in use. Any modifications required will be carried out at e Customer’s expense.
b) IN no event shall the Supplier be liable for damage, loss or injury to British Telecom or other Network Providers equipment or their sonnet in connection with, or arising from the Customer’s act of neglect.
12.1
Neither
party is liable to the other for any failure to perform its obligations under
the Agreement to the extent caused by Force Majeure, provided that the affected
party:
a)
immediately
notifies the other party and provides full information about the Force Majeure;
b)
uses
reasonable endeavours to overcome the Force Majeure; and
c) continues to perform its obligations to the extent practicable.
12.2 Rights of third parties: No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.
12.3 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
12.4 Independent contractor: The Supplier is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust, or partnership) exists under the Agreement.
12.5 Notices: A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Key Details and/or such other email address as the other party may in writing specify. A notice given in this manner will be deemed received (absent any indication of failed transmission) on the day it was sent if sent on a business day in England between 09:00 and 17:00 and, otherwise, at 09:00 on the next business day after it was sent.
12.6 Severability: Any illegality, unenforceability, or invalidity of a provision of the Agreement does not affect the legality, enforceability, or validity of the remaining provisions of the Agreement.
12.7 Variation: Any variation to the Agreement must be in writing and signed by both parties.
12.8 Entire agreement: The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged, or agreed prior to the Start Date. The parties have not relied on any representation, warranty, or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty, or agreement has any effect from the Start Date.
12.9 Subcontracting and assignment: Neither party may assign, novate, subcontract, or transfer any right or obligation under the Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. A party that subcontracts any of its obligations under the Agreement shall nevertheless remain responsible for performance of those obligations and for the acts and omissions of its subcontractor as if they were its own acts and omissions. Any assignment, novation, subcontracting, or transfer must be in writing.
12.10 Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of England and Wales. Each party submits to the non-exclusive jurisdiction of the Courts of England and Wales in relation to any dispute or claim arising out of or in connection with the Agreement, including any noncontractual dispute or claim or dispute or claim relating to the execution or existence of this Agreement.
12.11 Counterparts: The Agreement may be
signed in counterparts, each of which constitutes an original and all of which
constitute the same agreement. A party may enter the Agreement by signing and
emailing a counterpart copy to the other party.
Appendix A
Section C – Acceptable Use Policy
1.
Cloud
Voice Inclusive Minutes Tariff Acceptable Use Policy
1.1
This acceptable use policy (“AUP”) outlines the
principles that govern use of the Cloud Voice Inclusive Minutes Tariff provided
by Fonyo (a brand of ITSec Limited) in connection
with your Fonyo Cloud Voice services. This acceptable
use policy covers your usage obligations for your Fonyo
Cloud Voice Inclusive Minutes Tariff. It forms part of your contract with us,
along with our standard terms and conditions and Cloud Voice product specific
terms. This policy sets out your usage obligations giving you information
required to ensure your usage is compliant.
1.2
You must read this AUP very carefully. It is
important. It forms part of your agreement with us.
1.3
“User(s)” or “you” means customers or anyone
else who uses or accesses Fonyo Cloud Voice services.
1.4
We may amend, modify, or substitute this AUP at
any time. Your continued use of any Fonyo services
after any such amendment, modification or substitution constitutes your
acceptance of any new AUP. We recommend that you visit our website regularly to
check for any updates or amendments to this AUP.
2.
Use of Cloud Voice Inclusive Minutes Tariff You
have an obligation to use the Cloud Voice inclusive minutes tariff for
legitimate business purposes only. Failure to adhere to the policy may result
in a loss of or restriction to your service. Below is a non-exhaustive list of
your obligations and the types of activity which you should avoid.
2.1
Any usage intended to manipulate the standard
call routing process is forbidden.
2.2
You must not resell our services for the purpose
of earning financial revenue or other reward. Including the use for calling
“cash back” or “cash for calling” numbers (i.e. where you are paid, in monetary
or other terms (e.g. by receiving gift vouchers, credits for goods or services,
or anything similar) by the provider for calling that number is not an
acceptable use of our services.
2.3
You must not use our services, or permit others
to use them, in any way that is unlawful or illegal or in any way to the
detriment of other users. Further, you must not use our services for fraudulent
or criminal purposes (including making calls, sending messages, or posting or
downloading content which is offensive, defamatory, indecent or a nuisance).
2.4
We reserve the right to investigate, suspend or
terminate your services where it becomes apparent that they are predominantly
used for;
a)
Calling international calling card numbers;
b)
Used predominantly for calling conference call
facilities
2.5
Any other usage that result in a usage pattern
or patterns that are disproportionate to the overall type, amount, duration
and/or extent which would be expected from good faith usage of our Network or
Services (also referred to as “artificially inflated traffic”) is prohibited
and we reserve the right to suspend your services if this type of usage is
discovered.
3.
Fonyo enforcement
actions – our rights to investigate, suspend, restrict, or terminate your
services
3.1
We reserve the right to investigate any
suspected violation(s) of this AUP.
3.2
We will take action if you abuse our services.
The actions we may take, in our sole discretion, at any time include but are
not restricted to:
a)
a quick chat on the phone or an informal email
asking for your cooperation;
b)
suspension of your account or service (with or
without notice);
c)
restriction of your access to all or any part of
our services (with or without notice); or
d)
termination of your account (with or without
notice).
3.3
If a suspension is imposed, then this may be
lifted at our discretion upon resolution of the AUP breach and confirmation
from you that this usage behaviour will not continue, If further breaches take
place we will progress termination of services.
3.4
Prior to termination of services as a general
rule, we will attempt to work with Users (but are not obliged to do so) to
avoid future violations of the AUP.
