Business Terms and Conditions
By confirming agreement to these Terms and Conditions, the Client is entering into an agreement with Barbuck to provide telephone call tracking and reporting services, or any other goods or services ordered by the Client from Barbuck.
The Agreement between the Client and Barbuck is made up of these Terms and Conditions and all documents referred to therein. \
The Client is bound by these Terms and Conditions.
Commencement Date and Term
In these Terms and Conditions some words have particular meanings. These are set out in Clause 24 below.
Term: The Agreement shall come into effect on the Effective Date and shall remain in force until (the “Initial Term”) and thereafter on a rolling contract for periods equalling 1 Months (each a ”Contract Term”) unless earlier terminated in accordance with these Terms and Conditions, including following the termination process set out in clause 13. The Contract shall come into effect on the signup date and shall remain in force thereafter for the Initial Term, then as a rolling contract for periods equalling the Initial Term (together with any extensions) unless earlier terminated in accordance with these Terms and Conditions, including by following the termination process set out in clause 13.
The Client purchases telephone call tracking and reporting services, or any other services, goods or commodities ordered by the Client from Barbuck, upon these Terms and Conditions.
1.4 Barbuck shall be entitled to provide the same or similar services, goods or commodities to third parties and the Client acknowledges that the provisions under this Agreement are non-exclusive.
Service Packages & Service Level Agreements: The Client will request which Services package and service levels, together with Charges package, upon signup.
Barbuck may need to cancel, reduce or amend any or all Services at any time by giving written notice to the Client (including by email) and the relevant Charges shall be reduced or amended accordingly.
Importance of timescales: Unless otherwise stated, time shall be of the essence in relation to each of the obligations of the Client under the Agreement including payment.
“Barbuck Customer Interface”
Where agreed, Barbuck shall make the Barbuck Customer Interface available to the Client which shall be used in the provision of the Services to the Client by Barbuck.
Barbuck shall request the services of its Associated Providers as required in order to enable Barbuck to provide the Services.
Barbuck is only able to link into the Client’s telecom’s provider’s systems when those systems are in service and operational and the Client shall be solely responsible for arranging access to all and any data required by Barbuck to undertake the Services.
The Client is responsible for the security and safety of any user identification and password supplied to it by Barbuck, and the Client shall be responsible for all use made of the same. If the Client believes that there has been any unauthorised use of its user identification or password, it must notify Barbuck immediately. If Barbuck reasonably believes that the Client’s user identification and password are being used by an unauthorised user or in a manner breaching these Conditions, Barbuck reserves the right to suspend the Client’s access to Reports and the provision of the Services until the matter is resolved to Barbuck’ reasonable satisfaction.
Barbuck may alter any Access Number allocated to the Client and / or how the Barbuck Customer Interface is integrated into the Client’s System(s) immediately in order to comply with any applicable numbering plan or to avoid a breach of licence, law, applicable regulation or order of a competent authority or for any other reason that Barbuck deems necessary in its sole discretion.
Barbuck shall have no liability in respect of: the acts or omissions of an Associated Provider or for the effects of such acts or omissions on the Services; any part of the Telecoms infrastructure not directly controlled by Barbuck; hosting of servers, or telecoms equipment; interconnects; incorrect or incomplete implementation of number ranges by external Telecom Providers (DMA issues); website or phone call abnormal load increases without prior express agreement; misuse of data provided by Barbuck to the Client; any impact to the Client as a result of Barbuck validly exercising any right to withdraw or alter services under the Agreement.
Barbuck, CRE, NRA or any other competent authority may record or monitor any Information Service provided by the Client should any of them believe this to be appropriate.
Barbuck shall not be liable in any way if a Caller is able to call an Information Service directly via the Client’s terminating number and not the relevant Access Number, except where such terminating number has become known to the Caller as a result of Barbuck’ negligent act or omission.
Reports: Any Report constitutes general guidance only and the Client remains wholly responsible for any reliance it places on a Report. Any decisions the Client makes having received any of the Services are its own and the Client will remain wholly responsible for any decisions and actions it takes.
The Client acknowledges that, from time to time, delivery of the Services may be delayed due to scheduled or unscheduled maintenance or other factors which may arise and Barbuck shall not be in breach of any Clause of the Agreement.
The Client acknowledges that Barbuck may collect and aggregate information and data supplied by the Client and / or third parties (including its Associated Providers), including call access and data records, in order to provide Reports to the Client. It is acknowledged that this information and data is not generated by Barbuck and Barbuck does not always edit that information or data.
The Client understands and agrees that the Reports are for internal review, analysis and research only. The Client may not use the Reports to redistribute to others, publish, broadcast or sell, or in any manner infringe any Intellectual Property Rights of Barbuck or any third party. The Client agrees not to adapt, alter or create a derivative work from any content contained in a Report and to only use a Report for its own use as permitted by these Terms and Conditions.
The Client understands and agrees that Barbuck may organise the aggregated data collected in respect of a Campaign into formats of its choosing when delivering a Report.
Dynamic Number Services: Where the Client elects to receive these services, unless otherwise agreed, any numbers that form part of the Dynamic Number Service will remain under the sole control of Barbuck and the Client agrees that these numbers are not automatically subject to the same NRA rights as any other numbers provided, including, but not limited to, Access Numbers and number porting arrangements. Dynamic Number Services, under Barbuck’ control, come with no NRA guarantee or protection as to withdrawal of specific numbers or ranges, changes to the actual and amount of numbers in use, compliance with any regulatory requirements, ineffective/ inefficient use and any unexpected severe load increases not previously agreed with the Client. At Barbuck’ discretion, it will use proportionate endeavours to make number porting available with respect to Dynamic Number Services where possible.
Barbuck reserves the right to withdraw service or increase pricing should they deem that the account is being used outside the parameters of fair use which, for the avoidance of doubt, constitutes a manually provisioned tracking number receiving less than five calls per month (not applicable to automatically provisioned numbers), or the number of page impressions to calls received exceeding a ratio of 2000:1.
Client’s System(s) and processes
The Client agrees to supply Barbuck with any information and assistance Barbuck reasonably requests or otherwise necessary or relevant for Barbuck to perform its obligations under the Agreement.
Client’s System(s): The Client agrees to remain wholly responsible for the equipment it uses which enables the Services to be received (including any System(s)). With the exception of the Access Number, the Client shall be solely responsible for providing and maintaining all hardware, software, electrical and other physical requirements for the Client’s use of the Services (including telecommunications and internet access connections and links, web browsers, bandwidth or other equipment, and programs and services required to access and use the Services, the Barbuck Customer Interface and the Reports).
Backups: While Barbuck will use reasonable endeavours to make timely backups of all Reports provided to the Client, the Client is responsible for backing up all Reports provided as part of the Services as well as all data (including call access and data records) used by Barbuck in providing the Services.
Client Campaigns: The Client is responsible for obtaining, and warrants that it has obtained, all required licences, consents and agreements necessary in respect of any Campaign.
Non-solicitation: The Client shall not at any time from the date of 6 months after the last date of the supply of any Services solicit or entice away from Barbuck or any Associated Provider or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or sub-contractor of Barbuck or any Associated Provider in the provision of the Services.
Code of Practice: The Client shall at all times comply with the Code of Practice. It is the Client’s sole responsibility to ensure that it regularly updates itself on any amendments to the Code of Practice made from time to time so that it is able to comply with the Code of Practice as required by this Clause 4.6. The Client shall further comply with any instruction, direction, recommendation or advice that Barbuck, an Associated Provider, the CRE, NRA or any other competent authority issues with regard to the Services or any Information Service.
The Client shall be responsible at its sole expense for all promotions in respect of a Campaign concerning an Information Service. The Client shall ensure that it complies with the Code of Practice as to pricing information concerning telephone calls made by a Caller in respect of a Campaign and as to informing a Customer of the monitoring and recording of a telephone call they make in respect of a Campaign including the disclosure of such recordings to Barbuck. The Client shall further ensure that the rate per minute paid or to be paid by a Caller to their line provider when calling an Access Number is clearly stated within all promotional material in respect of a Campaign.
The Client undertakes not to apply for registration of a trade or service mark incorporating any Access Number, whether on its own or in conjunction with other words or trading style.
Atypical Traffic Typology: The Client shall inform Barbuck if the Campaign may generate Atypical Traffic Typology in respect of an Access Number. The Client acknowledges that such Atypical Traffic Typology may require additional technical studies and could cause implementation delays. In addition, the Client will provide Barbuck with at least 2 weeks’ prior written notice before each period of use of an Access Number which could generate Atypical Traffic Typology. This written notice shall contain the traffic pattern forecast (to include the total number of calls expected, the average duration of each call, and the periods of day when such calls are expected).
The Client shall provide Barbuck with at least 2 weeks’ prior written notice in the event that the Client forecasts that it shall generate traffic of 100,000 minutes or more per month in relation to an Access Number during the following month.
In the event that the Client fails to provide Barbuck with notice in accordance with Clauses 4.9 or 4.10:
Barbuck shall have no liability for any failure to convey calls to (i) the Client’s voice telephony equipment; or (ii) any operator connected to the Client or to another operator connected to such an operator, as the case may be; and
the Client shall indemnify Barbuck in respect of any loss or damage, direct or indirect, or other liability arising there from.
The Client shall ensure that all rights, licences and consents, including with regards to any Intellectual Property Rights, required for the provision of the Services are obtained and complied with and the Client shall forthwith, at Barbuck’ request, supply Barbuck with evidence that it has fulfilled this obligation.
The Client shall provide Barbuck, CRE, NRA and any other competent authority with such information and material relating to an existing or future Information Service to which Barbuck conveys or should convey messages hereunder as Barbuck, CRE, NRA and any other competent authority may reasonably require in order to carry out an investigation in connection with an Information Service or the Client’s relationship with the person or organisation providing information or material for inclusion in an Information Service.
The Client shall, on written notification from Barbuck, terminate forthwith the provision of any Information Service which Barbuck determines to be in breach of these Terms and Conditions.
The Client shall, where reasonably required, assist Barbuck in complying with all requirements and conditions at any time imposed on Barbuck by law, CRE, NRA or any other competent authority where applicable to the Information Service.
The Client shall be liable for the acts or omissions of any agent, sub-contractor or employee of the Client.
Charges and Payment
Charges: The Charges for the provision of Services and or goods and commodities shall be specified on the relevant package. Unless otherwise stated, the Charges shall be exclusive of any applicable Value Added Tax (which shall be payable by the Client at the applicable rate from time to time).
Variations to Charges: Notwithstanding the provisions within these Terms and Conditions relating to Charges, Barbuck may vary the Charges on 30 days’ notice if the rates payable by Barbuck to any relevant Associated Provider or telecommunication operator for the conveyance of calls made to an Access Number are altered. If, following such alteration, the revised Charges are not acceptable to the Client, the Client may terminate the Agreement by giving 30 days’ written notice (such notice to be given within 30 days from the notification of the alteration of the Charges).
Without prejudice to Clause 5.3, Barbuck may change its Charges where Barbuck in its sole discretion deems it appropriate and shall give the Client 14 days’ written notice of this. If, following such alteration, the revised Charges are not acceptable to the Client, the Client may terminate the Agreement by giving 30 days’ written notice (such notice to be given within 7 days from the notification of the alteration of the Charges).
Call Charges: Call Charges are tied to each package Call Charges shall be invoiced by Barbuck and paid by the Client in accordance with these Terms and Conditions.
Where the Client requests any additional Access Numbers or changes the termination / origination country for any existing Access Number and the charges are not specifically listed, the Client will be charged all base costs plus Barbuck’ uplift. The Client is entitled to request and discuss details of such charges and uplifts in advance with Barbuck. Should the Client fail to request details of the charges in advance in this way, it shall be deemed to have accepted both base costs and uplifts which will be shown on the relevant invoice.
Payment: Unless otherwise agreed payment of the Charges shall be made in full no later than 30 days from the date of the invoice in cleared funds without any discount, set off or other deduction whatsoever.
Interest shall be payable on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgment) on a daily basis at the rate of 8% over the base rate from time to time quoted by Barbuck’ bankers compounded monthly. The Client shall also pay all legal and other costs incurred by Barbuck in recovering any amounts owing from the Client and such costs shall be due for payment immediately on invoice.
All sums payable to Barbuck under the Agreement shall become due immediately on its termination. This Clause 6.3 is without prejudice to any right to claim for interest under the law, or any such right under these Terms and Conditions.
If the Agreement is terminated and the Client has made any advance payment, Barbuck will refund a reasonable proportion of the balance as determined by Barbuck in relation to the value of the Services previously purchased.
Barbuck reserves the right to apply amounts received first in settlement of interest on overdue amounts and then of amounts due beginning with the oldest.
Without prejudice to any other of its rights, if the Client fails to make any payment when and as due Barbuck shall be entitled by giving written notice (including by email) to the accounts team, Account Manager, a director or any officer of the Client at any time to exercise any one or more of the following rights without any liability to Barbuck:-
to suspend or authorise its own and its Associated Providers’ performance of Services as referred to in the notice (including suspending the Client’s use of the Access Number by not routing calls made by a Caller to the Client and routing the calls to a replacement number with an automated message that the number has been suspended due to non-payment by the Client);
to require that all amounts invoiced by Barbuck at the date of the notice shall become immediately due and payable; and
to require the Client to pay Barbuck’ Charges in cash or cleared funds in advance and to refrain or authorise its Associated Providers to refrain from performing further services associated with the Services until such payment of its Charges has been received.
Any queries in connection with any invoice must be referred by the Client to Barbuck within 14 days of receipt. In the absence of such notice, an invoice will be deemed to be accepted by the Client.
Licence of Barbuck’s Background IP: Barbuck hereby grants, to the Client a non-exclusive, royalty free licence, for the Term, to use all Background IP and Materials owned or licensed to Barbuck solely for the purpose of carrying out its obligations under the Agreement. The Client shall be permitted to sub-license such Background IP and Materials to any sub-contractor solely for the purposes set out under the Agreement. Save as provided for in this Clause, the Client shall have no rights whatsoever to Barbuck’s Background IP or Materials.
Licence of Client’s Background IP: The Client hereby grants to Barbuck a non-exclusive, irrevocable, worldwide, perpetual, royalty free licence (with the right to grant sub-licences) to use and exploit all Background IP owned by or licensed to the Client solely for the purpose set out under this Agreement. The licence in this Clause 8.2 shall include any Improvements made thereto during the Term. The Client will procure such rights and consent from any third party necessary to give effect to the licence in this Clause 8.2. Save as provided for in this Clause, Barbuck shall have no rights or licences whatsoever to the Background IP of the Client.
Foreground IP and Materials: All Foreground IP and all related Materials, whether or not used by Barbuck, shall be the sole and exclusive property of Barbuck. The Client hereby assigns all right, title and interest, in and to such Foreground IP and Materials to Barbuck to the extent competent to do so, by way of present assignation of future copyright and, to the extent that such assignation of future copyright is not competent, such assignation shall be effective immediately on creation of the Foreground IP and Materials; and, so far as it is legally possible, the Client hereby waives any moral rights in such Foreground IP and Materials. The assignation in this Clause 8.3 shall include any Improvements made to the Foreground IP and Materials by the Client during the Term.
Improvements: In the event that the Client makes an Improvement to the Background IP and Materials licensed to the Client under Clause 8.1 above, then the Intellectual Property in such Improvement will vest in Barbuck and be deemed to be included in the assignation set out in Clause 8.3 above. The Client shall give to Barbuck such information, documents and technical assistance as may be required for putting the Improvements referred to in this Clause and Clause 8.3 above into practice and, in the case of any Improvements for which any registered protection (including patents and registered designs) is sought in any part of the world, shall supply to Barbuck a copy of all relevant Designs, Materials and specifications to enable an application to be filed.
Further actions: The Client shall:
forthwith disclose to Barbuck all Foreground IP and Materials which are prepared, conceived or developed by the Client pursuant to the Agreement and all Improvements referred to in Clauses 8.2, 8.3 and 8.4; and
at the request and expense of Barbuck, take all such steps as Barbuck may reasonably require to vest in Barbuck the right, title and interest referred to in Clauses 8.3 and 8.4 and to assist Barbuck in maintaining the validity and enforceability of Barbuck’s Intellectual Property and shall enter into such formal licences as Barbuck may reasonably request for this purpose.
Notice: Client shall immediately give notice in writing to Barbuck if it becomes aware of any:
infringement or suspected infringement of any of the Intellectual Property of Barbuck; or
claims made or threatened that the Intellectual Property of Barbuck infringes the rights of any third party.
No similar IPR: The Client shall not use (other than pursuant to the Agreement) or seek to register any Intellectual Property which is identical or confusingly similar to or incorporates any Intellectual Property which Barbuck owns or claims rights in anywhere in the world. The Client shall not represent that it has any title in or right of ownership to any of the Intellectual Property of Barbuck or do or suffer to be done anything which may impair the rights of Barbuck to its Intellectual Property or bring into question the validity of its registrations anywhere in the world.
The Client agrees not to copy, adapt, sub-license, alter or create a derivative work from any content contained in the Barbuck Customer Interface. No part of the Barbuck Customer Interface, including (but not limited to) its underlying coding, may be used, reproduced, republished, copied, reformatted, displayed, reverse engineered, reverse assembled, transmitted, distributed, licensed, sold, resold or exploited in any form or by any means by the Client other than as expressly permitted under these Terms and Conditions.
IP Indemnity: If any Claim is made against Barbuck on the basis of a breach of any of the warranties contained in Clause 14.1 or on the basis that the Client’s Intellectual Property, the provision or receipt of the Services, the Information Services, the Background IP of the Client or the Foreground IP and/or Materials assigned under Clause 8.3 (including any Improvement thereto) infringes the Intellectual Property rights of any third party, the Client shall indemnify Barbuck against all Losses awarded against Barbuck in connection with the Claim, or paid or agreed to be paid by Barbuck in settlement of the Claim. The Client’s liability under the indemnity contained in this Clause shall be unlimited.
Assignation and Sub-Contracting
No Assignation: Neither Partyt, without the prior written consent,, novate, licence, sub-contract or otherwise transfer any of its rights or obligations under the Agreement or any part thereof.
Duty to keep confidential: In consideration of the receipt of Confidential Information whether before, on or after the Effective Date, the Client agrees that it will:
keep secret and not at any time disclose to any third party any Confidential Information nor any part or extract from any Confidential Information which it receives from Barbuck;
use such Confidential Information only for the purpose set out under this Agreement (the “Purpose”) and not use it for any commercial or other purpose;
only disclose the Confidential Information to its employees, agents, officers, directors as need to have access to it for the proper performance of their duties and only then to the extent actually required for the Purpose and will procure that any person to whom the Confidential Information is disclosed as envisaged by this sub-Clause shall be aware of the confidentiality obligations contained hereunder and shall maintain the confidential status of the Confidential Information at all times;
not copy, adapt or reproduce in any manner or form such Confidential Information except as may be reasonably necessary for the Purpose; and
exercise at least the same degree of care and no lesser security measures as it exercises with its own Confidential Information which it does not wish to be disclosed.
The Client shall indemnify and keep fully indemnified Barbuck at all times against all Losses suffered or incurred by Barbuck arising from any breach of this Clause 10 by the Client or any breach by any of the Client’s employees, agents, officers, directors or sub-contractors of the confidentiality of the Confidential Information.
Exemptions: The restrictions and obligations contained in Clause 10 do not apply to any part of the Confidential Information which:
the Client can prove by documentary evidence was already in the Client’s possession or known to the Client prior to receipt from Barbuck otherwise than under an obligation of confidence;
at the time of its disclosure is, or subsequently becomes, public knowledge through no fault of the Client or any persons to whom the Client has disclosed the Confidential Information;
is lawfully received by the Client from a third party without any breach of an obligation of confidentiality to Barbuck; or
subject to 10.3.5 is required by law, court order or any governmental or regulatory authority to be disclosed by the Client.
the Client shall immediately notify Barbuck of the Confidential Information to be disclosed under 10.3.4 and of the circumstances in which disclosure is alleged to be required.
Roles and Responsibilities of the Parties:
Barbuck as Data Processor: The Parties acknowledge and agree that Barbuck is acting as a Data Processor on behalf of the Data Controller, to the extent it is processing Personal Data in providing the Services, save for the sole occasion when it acts as a Data Controller for the purposes of Clause 11.1.3;
The Client as a Data Controller: The Parties acknowledge and agree that the Client is acting as a Data Controller and has the sole and exclusive authority to determine the purposes and means of the Processing of Personal Data relating to the Data Subjects, in relation to the provision of the Services;
Barbuck as a Data Controller: It is acknowledged that in some circumstances Barbuck may be required by law, court order or any governmental or regulatory authority to disclose or Process Personal Data relating to the Data Subject without recourse to the Client and for those purposes it may be deemed to be a joint Data Controller. Where Barbuck is acting as joint Data Controller in respect of any Personal Data of a Data Subject, it hereby agrees to do so only in accordance with the relevant Applicable Law.
Obligations of Barbuck acting as a Data Processor: Barbuck will:
process Personal Data on behalf of and in accordance with the Instructions of the Client and this Agreement. Barbuck will inform the Client if, in its opinion, Instructions infringe Applicable Law;
ensure that any person authorised by Barbuck to Process Personal Data in the context of the Services, Information Service or any activity anticipated or arising from the Agreement is granted access to Personal Data on a need-to-know basis and is committed to respecting the confidentiality of the Personal Data;
inform the Client of: (i) any formal requests from Data Subjects exercising their rights of access, correction or erasure of their Personal Data, their right to restrict or to object to the Processing as well as their right to data portability, and not to respond to such requests, unless instructed by the Client in writing to do so; and (ii) any requests made by public authorities requiring Barbuck to disclose the Personal Data Processed in the context of the Services, Information Service or any activity anticipated or arising from the Agreement or to participate in an investigation involving such Personal Data;
provide reasonable assistance to the Client, at the expense of the Client, in ensuring compliance with the obligations of the Client under Applicable Law, including with regard to conducting data protection impact assessments and consulting with a supervisory authority, taking into account the nature of the Processing and the information available to Barbuck;
implement and maintain adequate data security processes;
inform the Client of any addition, replacement or other changes of Sub-processors and provide the Client with the opportunity to reasonably object to such changes on legitimate grounds. The Client acknowledges that these Sub-processors are essential to provide the Services and that objecting to the use of a Sub-processor may prevent Barbuck from offering the Services to the Client. Barbuck will enter into a written agreement with the Sub-processor imposing on the Sub-processor obligations comparable to those imposed on Barbuck under this Agreement, including appropriate Data Security Measures;
contribute to audits or inspections by making available to the Client upon request audit reports which the Client must treat confidentially. Barbuck will respond to a written security questionnaire submitted to it by the Client provided that the Client will not exercise this right more than once per year; and
at the choice of the Client, delete or return all Personal Data to the Client after the end of the provision of the Services, and delete existing copies, unless further storage of the Personal Data is required or authorized by Applicable Law.
Obligations of the Client acting as a Data Controller: The Client will:
only provide Instructions to Barbuck that are lawful;
perform all of its obligations under Applicable Law, including with regard to data security and confidentiality obligations;
ensure that Data Subjects are provided with appropriate information regarding the Processing of their Personal Data, including by means of offering a transparent and easily accessible public privacy notice;
ensure that Data Subjects can exercise the data protection rights granted to them under Applicable Law, including withdrawing their consent, and exercising their right not to be subject to automated decision-making based on profiling, if applicable; and
to the extent necessary to comply with applicable legal, regulatory or law enforcement requirements, inform Barbuck without unreasonable delay, but in no event more than 48 hours, after it becomes aware of any data security incidents (including a loss, theft, misuse, unauthorized access, disclosure, or acquisition, destruction or other compromise) that has occurred in its systems which affects Personal Data (“Data Incident”). Barbuck will provide reasonable information and cooperation to the Client so that the Client can fulfill any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Law. The Client will further take reasonably necessary measures and actions to remedy or mitigate the effects of the Data Incident and will keep Barbuck informed of all material developments in connection with the Data Incident.
Data security: Each party will implement and maintain a written information security program with Data Security Measures appropriate to the risks of the Processing, including:
Pseudonymisation and encryption of Personal Data;
the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services involved in the processing of Personal Data;
the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing of Personal Data.
The Client shall be responsible for identifying any personal data provided by a Caller in respect of a Campaign and shall be responsible for obtaining any consents in respect of such data where required to enable Barbuck to process that data as envisaged by these Terms and Conditions. Barbuck shall be entitled to have full copies of such consent, upon request.
Force Majeure Event: Neither Barbuck nor the Client shall be liable or deemed to be in default on account of delaying any delivery or the performance of any act under the Agreement due to circumstances which are beyond the reasonable control of either party (acting in accordance with the standards set out in the Agreement), including acts of God, strikes (other than strikes which only affect the employees, agents and contractors of the Client or companies within the same group as the Client from time to time), war, fire, riot, sabotage or terrorism (each a “Force Majeure Event”).
Notification: The delaying party shall notify the other party immediately if it becomes aware of a potential or actual Force Majeure Event. The delaying party shall provide the reasons for the delay and the likely duration of the delay. Such performance shall be so excused for the period during which such inability of the party to perform is so caused but for no longer period. Any time period for performance shall be extended by a period equal in duration to any period during which such performance is excused by this Clause 12.
Consequences: In the event that the Client or Barbuck continues to fail to perform its obligations hereunder for a period in excess of six months, the party not subject to the Force Majeure Event may terminate the Agreement with written notice to take effect immediately.
Either Party will be entitled to terminate the Agreement by providing the other party with at least one calendar month’s written notice of its intention to do so, such notice must expire upon the expiry of the Initial Term; or the expiry of any subsequent Contract Term.
Termination on default: Barbuck will be entitled to terminate the Agreement, in each case in whole or in part, forthwith by notice in writing to the Client if:-
the Client commits a breach of any of its duties and obligations under the Agreement which in the case of a breach capable of remedy shall not have been remedied within seven (7) days of the receipt by the Client of a notice from Barbuck identifying the breach and requiring its remedy;
the Client is unable to pay its debts, or ceases to pay its creditors in the ordinary course of business or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation, if a different legal entity, shall agree to be bound by and assume the obligations of the relevant party under the Agreement) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator or administrative receiver appointed or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party giving notice means that the other may be unable to pay its debts, or any event analogous to any of the events set out in this Clause occurs in relation to the Client in any jurisdiction;
the Client fails to pay Barbuck’ invoices as they fall due;
the Client or any of its sub-contractors:
breaches any of its obligations under Clause 8 (intellectual property), Clause 10 (confidentiality) or Clause 11 (data protection); or
challenges the validity or ownership or opposes the grant of any Intellectual Property of Barbuck or any Intellectual Property in which Barbuck claims rights; or
breaches any of the warranties set out in Clause 14;
there is a change of control, as defined by Section 416 of the Income and Corporation Taxes Act 1988, in the Client; or
an Access Number allocated to Barbuck is withdrawn or is no longer made available to Barbuck.
Alternatives to termination: If Barbuck is entitled pursuant to Clause 13.3 to terminate the Agreement, in each case in whole or in part, it shall be entitled, at its sole discretion, and without prejudice to any other rights it may have, by giving written notice to that effect to the Client to:
recover from the Client any charges incurred by the Client through receiving Barbuck’ Services; and/or
claim damages for any additional costs, loss (including loss of profit) or expenses incurred by Barbuck which are in any way attributable to the Client’s failure to pay invoices.
Accrued rights: Termination of the Agreement in each case in whole or in part, for whatever reason shall not affect the accrued rights of the parties arising in any way out of the Agreement as at the date of termination and, in particular, the right to recover damages against the other and all provisions which are expressed to or by implication survive termination of the Agreement shall remain in full force and effect.
Consequences: On the termination of the Agreement, in each case in whole or in part, for any reason the Client shall:-
cease to use, either directly or indirectly, any of the Intellectual Property, Background IP or Materials of Barbuck and forthwith return to Barbuck or destroy (at Barbuck’ option) any documents, items and materials in its possession or control which contain or record any part of such Intellectual Property, Background IP or Materials;
cease to use the Barbuck Customer Interface, Materials or any other items provided to it by or on behalf of Barbuck;
remove all Intellectual Property belonging to Barbuck from its computers and any other electronic database(s);
return forthwith or destroy (at Barbuck’ option) all computer programs, Materials and any other items provided to it by or on behalf of Barbuck and any copies of any of the foregoing or records relating to any of the foregoing;
the Client shall, subject to Clause 13.9, immediately return to Barbuck the Access Number by transferring the right to use the Access Number to Barbuck free from all liens, charges and encumbrances
Services Suspension: Without prejudice to Barbuck’ right to terminate the Agreement, Barbuck may suspend the Services if:-
there occurs any material breach by the Client of any term of these Terms and Conditions which is irremediable or if remediable is not remedied to Barbuck’ satisfaction within 7 days of a written notice by Barbuck specifying the breach and requiring it to be remedied; or
a competent authority requires or advises to Barbuck to do so.
On termination of the Agreement howsoever arising, the Client may elect to continue to use any Access Number provided that the Client shall enter into a contract or arrangement (as applicable) directly with the Associated Provider who provides and maintains the Access Number and directly discharges all costs due in respect of any and all use of the Access Number and indemnifies Barbuck and continues and keep Barbuck indemnified from and against any and all losses, costs, liabilities and expenses arising out of or in connection with the Access Number and all actions, suits, proceedings, claims, demands, assessments and judgments with respect to the foregoing.
Warranties: The Client warrants, represents and undertakes to Barbuck that:-
it has requisite power and authority to enter into and perform its obligations in terms of the Agreement;
it has the right to grant to Barbuck the rights and licences referred to in Clause 8 and that none of the following or the use thereof shall infringe any third party’s Intellectual Property or other proprietary rights: any Intellectual Property of, or provided by, the Client or a sub-contractor, the Foreground IP, the Materials, the provision or receipt of the Services, Information Services and any other activity envisaged or arising out of this Agreement;
it has obtained all necessary and required licences, consents and permits to perform any activity envisaged or arising out of this Agreement;
it will implement appropriate Health and Safety policies in respect of any activity envisaged or arising out of this Agreement and will comply and will procure that its subcontractors, employees and agents will comply at all times with those policies;
it shall operate in accordance with the provisions of the Agreement including in accordance with the Code of Practice and all applicable Legislation;
it shall comply with its obligations as a Data Controller under Clause 11; and
it will not and will procure that none of its sub-contractors, employees or agents will infringe the Intellectual Property of Barbuck.
Limitation of Liability
No exclusion: Neither party excludes or limits liability to the other party for death or personal injury arising from the negligence of such party.
Cap on Barbuck’ liability: Subject to Clause 15.1, to the maximum extent permitted by law, Barbuck excludes all liability arising under or connected to this Agreement. Further, and subject to Clause 15.1 the aggregate and total liability of Barbuck under the Agreement (including that arising from negligence, delict or otherwise) shall in no event exceed the lesser of:-
the Charges paid by the Client to Barbuck in a maximum of the last 12 rolling months of Contract in which the incident giving rise to the Claim took place up to the date of that incident; and one million pounds Sterling.
Barbuck shall have no liability for any consequential loss or damage suffered by the Client under or in connection with the Agreement occasioned by any act or omission on the part of Barbuck or any of its Associated Providers, whether directly or indirectly, including (but not limited) to wasted time or expenditure, loss of profits, use, revenue or goodwill;
Barbuck shall have no liability whatsoever in connection with any loss or damage caused by the failure of any equipment the Client uses in connection with the Agreement (including any System(s)).
Indirect losses: Subject always to 8.7, 10.2, 15.1 and 15.6, in no event shall either party be liable to the other for indirect loss or damage.
Other liability: The provisions of Clauses 15.5 and 15.7 shall not be taken as limiting the right of Barbuck to claim from the Client for:-
directly incurred loss of profits, business revenue, goodwill or anticipated savings;
additional operational and administrative costs; and
expenditure rendered unnecessary as a result of any breach of the Agreement by the Client.
Insurances: The Client shall take out and maintain in full force and effect at all times during the term of the Agreement and for a period of one year afterwards, insurances to fully cover its liabilities under this Agreement.
No partnership: Nothing in the Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and no party shall have authority to act in the name, or on behalf of, or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). The relationship between the parties is an independent contractual relationship based solely on Barbuck’ delivery of the Services to the Client.
Entire Agreement: The Agreement, comprising the Terms and Conditions agreed between the parties pursuant to Clause 2 together with any other documents referred to therein, constitutes the entire agreement between the parties and supersedes and replaces all other agreements or discussions whether written or oral between Barbuck and the Client with respect to the subject matters described therein.
The parties both agree that, in entering into the Agreement, neither party has relied on, and is not able to have any remedy for, any statement, promise, representation or understanding (whether it was made negligently or innocently) of any person other than what is expressly promises in the Agreement.
No exclusion: Nothing in this Clause 17 shall have effect of limiting or restricting any liability of the parties arising as a result of fraud or fraudulent misrepresentation.
Variation: Barbuck reserves the right to change these Terms and Conditions by giving the Client 14 days’ written notice at any time. If, following such alteration, the revised Terms and Conditions are not acceptable to the Client, the Client may terminate the Agreement by giving 30 days’ written notice (such notice to be given within 7 days from the notification of the alteration of the Terms and Conditions). No other variation or amendment to these Terms and Conditions or to the Agreement shall be valid unless it is in writing and validly signed on behalf of each party, being confirmed in writing and signed by a director of Barbuck or Barbuck’ company secretary.
Severability: If any provision of the Agreement is held by any court or other competent authority to be void or unenforceable in whole or part, the other provisions of the Agreement and the remainder of the affected provisions shall continue to be valid.
Notices and Service
Email communication: The parties acknowledge and agree that notwithstanding the remainder of this Clause 20, day-to-day operational information can be transferred between the parties by email.
Notice requirements: Any notice, consent, confirmation or other information required or authorised by the Agreement to be given by either party to the other may be given by hand (including by commercial courier) or sent by first class recorded delivery post to the other party at its last known business address, any address specified or such other address as may from time to time be notified in writing to the party giving such notice or other communication by the party to whom such notice or other communication is given.
Time of service: Notices shall be deemed given, in the case of notice given by first class recorded delivery post, two (2) Business Days after the date of posting and in the case of notice given by hand (including by commercial courier), at the time of delivery at the address referred to in Clause 20.2.
Third Party Rights
Third Party Rights: No person other than Barbuck, any person to whom Barbuck assigns, novates, sub-contracts or transfers in any other way the Agreement and the Client shall acquire any enforceable rights under or in connection with the Agreement.
Non-waiver: No failure or delay by either party to the Agreement to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
English law: The Agreement shall be governed by and construed in accordance with the laws of England, and any dispute arising shall be subject to the exclusive jurisdiction of the English courts.
Definitions and Interpretation
In the Agreement, unless the context otherwise requires:-
means each telephone number facility from time to time provided by Barbuck, or through an Associated Provider, or a third party provider for the benefit of the Client in respect of the Services.
has the meaning set out in Clause 7.1;
means the agreement between Barbuck and the Client comprising of the Terms and Conditions;
means any company, firm or individual from time to time engaged by Barbuck to assist in providing the Services in relation to any Campaign.
“Atypical Traffic Typology”
means aggregation of calls that are sent in burst so that they generate heavy peaks of traffic in a short period of time or any traffic pattern that differs substantially from the usual traffic pattern seen over voice telephony networks.
means any Intellectual Property of a party that is:
(a) owned, licensed or otherwise proprietary to that party and was conceived, created, or developed prior to, or independent of any services performed for the other party; and
(b) relevant to the performance of the Services or any other activity anticipated by or arising under this Agreement;
means any day from Monday to Friday inclusive on which Barbuck is open for business;
means any customer or potential customer (as applicable) of the Client in relation to any Campaign who calls or who may call (as applicable) the Client via an Access Number.
means Barbuck Limited, a company registered in England and Wales under company registration number 6539973 and whose registered office is at 19 Moulton Park Office Village, Scirocco Close, Northampton, Northamptonshire, NN3 6AP;
“Barbuck Customer Interface”
means Barbuck’ proprietary system (together with any upgrades, enhancements, developments or modifications to the same) to create an interface between the Client’s and Barbuck’ systems whereby, on receipt of a telephone call addressed and routed through an Access Number, call access and data records will be able to be provided by the Client to Barbuck, inter alia, in respect of logging telephone calls made to the Client by a Caller for the purpose of monitoring advertising conducted by the Client and which is used in connection with the provision of the Services.
means the per second charge for calls and rounded up to the nearest minute at the end of billing period.
means any advertising campaign where the intent or effect is, either directly or indirectly, to encourage a Caller to contact the Client by telephone in respect of an Information Service in respect of which the Client requests the performance of Services (including television, radio, on-line, print and broadcast advertising campaigns).
means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, whether arising in contract, tort, delict or otherwise);
means the client of Barbuck.
means all charges payable by the Client to Barbuck in relation to the Services. (including the Call Charges, the Feature Charges and the Installation Charge).
“Code of Practice”
means the CRE code of practice as amended from time to time.
means a content regulation entity, a public or private entity (such as ICSTIS, CST, CTA, PSA or BNetzA) that is responsible for the industry Code of Practice and is consulted in relation to disputes regarding the content of a service;
means all information or data (in whatever form that may take including written form, electronically stored information, drawings, specifications, code, samples, prototypes and materials) disclosed (whether in writing, orally or by any other means) to the Client by Barbuck or by a third party on behalf of Barbuck and whether or not labelled or designated as confidential; any information ascertainable by the inspection or analysis of software, samples, products, goods or design specifications; any information relating to Barbuck’ business, finances, operations, goods and services, marketing affairs and opportunities, customers, suppliers, plans, inventions, processes, trade secrets, know how, design rights, software and Intellectual Property; and any information designated in writing as confidential information by Barbuck whether belonging to Barbuck or a third party (references to “Confidential Information” means to the Confidential Information as a whole and to any part of it);
has the meaning given to it in Clause 1.2;
means each period from 1st January to the following 31st December during the Term and where the Effective Date is a date other than 1st January, the first Contract Year shall be the period from the Effective Date until 31st December and where the Agreement terminates on a date other than 31st December, the last Contract Year shall be the period from the 31st December immediately prior to the date of termination;
means the entity which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data;
means the entity which Processes Personal Data on behalf of the Data Controller;
“Data Security Measures”
means technical and organisational measures that are aimed at ensuring a level of security of Personal Data that is appropriate to the risk of the Processing, including protecting Personal Data against accidental or unlawful loss, misuse, unauthorised access, disclosure, alteration, destruction;
means an identified or identifiable natural person to which the Personal Data pertain;
means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise;
means the date that this Agreement comes into effect, irrespective of date of signing/ date of Agreement.
“Fair Use Policy”
means Barbuck’ fair use policy or statement as notified in writing to the Client by Barbuck as the same may be amended from time to time and provided to the Client;
means the rates payable for each feature of the Services or other services offered by Barbuck
means any Intellectual Property that is created, developed and/or produced by the Client or a sub-contractor in the course of receiving the Services from Barbuck or any other activities anticipated by or arising under this Agreement;
means the general specification applicable to all goods and Services as notified in writing by Barbuck to the Client or otherwise made available as the same may be amended from time to time and provided or made available to the Client;
“Good Industry Practice”
means that standard of skill, care and diligence which would reasonably be expected of an appropriately qualified, skilled and experienced person, firm or company carrying out the same activities as anticipated by or arising under this Agreement;
means any development, enhancement or derivative of the outcome of the Services or anything arising from this Agreement, or their design or manufacturing process;
means any message or live communication service offered to a Caller by the Client, or the content of any part of such a service and, where appropriate, including promotional material used by the Client in respect of a Campaign;
has the meaning given to it in Clause 1.2;
means this Agreement and any further written agreement or documentation by way of which the Data Controller or its affiliates instruct the Data Processor to perform specific Processing of Personal Data;
means any and all intellectual property or industrial rights of any description anywhere in the world (whether registered, unregistered, registerable or not and any applications or rights to apply for registration of any of them) including any patents, trade marks, domain names, designs, copyright (including rights in computer software and object and source code)), rights in the nature of copyright, database rights, semi-conductor topography rights, rights in and to trade names, business names, brand names and logos, inventions, databases, discoveries, specifications, formulae, processes, know how, trade secrets, information, data, methods, techniques, confidential information and any analogous or similar right in any jurisdiction and any Improvement in relation to the same;
means in relation to any undertaking and any circumstance all laws, statutes and statutory instruments, regulations, by-laws, codes of practice, standards determined by any governmental or regulatory authority or judgments of a competent court of law which apply or may apply to that undertaking or to that circumstance from time to time;
means all losses including financial losses, damages, legal costs and other expenses or costs of any nature whatsoever;
means any documents, specifications (including the Specification), Designs, blueprints, sketches, notes, reports, data, models, moulds, prototypes, samples and plans provided under the Agreement or otherwise provided to Barbuck, wherever such materials are located or stored and copies of such materials;
means the national regulation agency in charge of electronic communications (such as OFCOM, ARCEP – formerly ART, ComReg or AGCOM) or any similar body which may be appointed in addition to or substitution of it;
means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, that is collected, disclosed, stored, accessed or otherwise processed by the Data Processor/Data Controller for the purpose of providing the services to customers of the Client or for any other purpose;
“Personal Data Breach”
means a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
means the Processing of Personal Data in such a manner that the Personal Data can no longer be attributed to a specific Data Subject without the use of additional information;
has the meaning given in Clause 10.1.2;
means a “read-only” report detailing information collected from or provided by the Client (through the Barbuck Customer Interface or otherwise) in relation to a Campaign detailing telephone calls received by the Client in respect of a Campaign and which is to be used for the purpose of monitoring a Campaign and shall form part of the Services;
means any and all services as shall be provided by Barbuck to the Client from time to time.
means the entity engaged by the Data Processor or any further Sub-processor to Process Personal Data on behalf and under the authority of the Data Controller;
means the combination of:-
(i) the General Specification;
(ii) the specification for the particular goods or Services.
means each management and data capture system(s) of the Client on which Barbuck is required to integrate with the Barbuck Customer Interface and which is to be used in the connection with the Agreement;
has the meaning given in Clause 1.2;
“Terms and Conditions”
means these terms and conditions;
means value added tax chargeable under English law for the time being and any similar additional tax.
In the Agreement:-
any reference to the Agreement or to any other document shall include any permitted variation or amendment to the Agreement or such other document;
use of the singular includes the plural and vice versa and words denoting any gender shall include a reference to each other gender;
any reference to a “company” shall be construed as including references to a body corporate, wherever and however incorporated or established;
any reference to “person” includes natural persons, firms, partnerships, companies, joint ventures, corporations, associations, organisations, foundations and trusts (or the trustee of a trust), government, supra-governmental body, state agency or local municipal authority (in each case whether or not having separate legal personality);
any reference to any statute, statutory instrument, order, regulation or other similar instrument (including any EU order, regulation or instrument) shall be construed as including references to any statutory modification, consolidation or re-enactment of that provision (whether before or after the date of the Agreement) for the time being in force including all instruments, orders or regulations then in force and made under or deriving validity therefrom;
the words “include” or “including” shall be construed as meaning without limitation;
any reference to a “party”, means a party to the Agreement and “parties” shall be construed accordingly; and
the headings in the Agreement are for convenience only and shall not affect its interpretation.
Application of Conditions: These Terms and Conditions shall:-
apply and be incorporated into the Agreement; and
prevail over any terms or conditions contained, or referred to, in any purchase order, confirmation of order, acceptance of a quotation, emails, letters or specification or other document supplied by the Client or implied by law, trade custom, practice or course of dealing.