TERMS AND CONDITIONS OF SERVICE
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
These Terms and Conditions (the “Conditions”) govern the provision of Services by Orca Business Support Limited (“Supplier”, “we”, “us”, “our”) to the person or firm purchasing the Services (“Customer”, “you”). By placing an Order, the Customer agrees to be bound by these Conditions. These Conditions prevail over any terms issued by the Customer unless expressly agreed in writing.
1. Interpretation
1.1 The following definitions and rules of interpretation apply in these Conditions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Control: as defined in section 1124 of the Corporation Tax Act 2010, and change of control shall be construed accordingly.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.3.
Data Protection Legislation: the UK General Data Protection Regulation (UK GDPR), the Data Protection Act 2018, and the Privacy and Electronic Communications Regulations 2003 (PECR), in each case as amended or replaced from time to time.
Data Controller, Data Processor, Personal Data, Processing: have the meanings given in the UK GDPR.
Data Subject: an identified or identifiable natural person to whom Personal Data relates.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights which subsist now or in the future anywhere in the world.
Order: the Customer’s order for Services as set out in the Customer’s written or oral acceptance of a quotation by the Supplier, or overleaf, as the case may be.
Services: the services supplied by the Supplier to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by the Supplier to the Customer.
Supplier: Orca Business Support Limited, registered in England and Wales with company number 07333816, whose registered office is at 8 Wilkinson Business Park, Wrexham, LL13 9AE.
Supplier Materials: has the meaning set out in clause 4.1(h).
1.2 A reference to a statute or statutory provision is a reference to it as amended, extended, re-enacted or replaced. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.3 Any words following including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A reference to writing or written includes email but excludes fax.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed accepted when the Supplier issues written or oral acceptance of the Order, at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Unless terminated earlier in accordance with clause 9 (Termination) or this clause, the Contract shall continue in force. The Customer may terminate the Contract by giving one complete calendar month’s written notice by email confirmation to info@weareorca.com.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 All Services are subject to the Acceptable Use Policy.
4. Customer’s obligations
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer’s premises and equipment for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start, including in respect of any Service which permits the Customer to upload music files for a music on hold feature;
(g) comply with all relevant legislation, regulations, guidelines and codes of practice;
(h) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
(i) comply with any additional obligations as set out in the Specification.
4.2 If the Services include call recording of inbound and/or outbound calls the Customer confirms that it has received and read the Supplier’s Call Recording Legal Requirements Guidance and acknowledges that such guidance is not legal advice. The Customer accepts that it is solely responsible for ensuring compliance with all legal requirements, including PECR and the UK GDPR, prior to recording any calls. Neither the Supplier nor its suppliers shall have any liability for any costs or claims arising from the Customer’s failure to comply with any legal requirements whether or not the Customer was aware of such requirements.
4.3 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations, in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
4.4 Where Services include the recording of inbound and/or outbound calls, the Customer shall ensure that all callers are clearly informed, prior to connection with the Supplier, that the call may be recorded for training, monitoring and/or quality purposes. Such notice should be delivered via the Customer’s IVR or other automated message system before diversion to the Supplier. Where the Customer is unable to implement such notice, the Supplier reserves the right (where technically feasible) to play a pre-recorded notice at the start of the call. The Customer acknowledges that it remains solely responsible for compliance with applicable data protection laws where proper notice has not been provided.
5. Charges and payment
5.1 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of 1 April in line with the percentage increase in the Retail Prices Index in the preceding 12‑month period. The first such increase shall take effect on 1 April following the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
5.2 The Supplier shall invoice the Customer monthly in advance in respect of the Customer’s subscription package and monthly in arrears in respect of calls over the subscription package allowance, or monthly in arrears for calls answered (as applicable).
5.3 The Customer shall pay each invoice submitted by the Supplier:
(a) within 14 days of the date of the invoice by Direct Debit or BACS, or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Customer under the Contract are exclusive of VAT. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due.
5.5 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest shall accrue each day at 4% per annum above the Bank of England base rate from time to time or, where applicable, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (whichever yields the higher amount).
5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.7 Where the Supplier provides the Customer with a telephone number (for which the Supplier incurs charges for inbound calls) the Supplier reserves the right to recharge 100% of the call charges incurred to the Customer.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
6.2 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
7. Data protection and data processing
7.1 Each party shall comply with the Data Protection Legislation. The parties acknowledge that, for the purposes of the UK GDPR, the Customer is the Data Controller and the Supplier is the Data Processor in respect of any Personal Data processed under the Contract.
7.2 The Supplier shall process Personal Data only on the documented instructions of the Customer (unless required otherwise by law), and not for any purpose other than the provision of the Services.
7.3 The Supplier shall ensure that persons authorised to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
7.4 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, the Supplier shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
7.5 Each party warrants that it will process Personal Data in compliance with the Data Protection Legislation.
7.6 Each party shall indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party arising from any breach of this clause 7 by the indemnifying party.
7.7 The Customer acknowledges that the Supplier is reliant on the Customer for lawful instructions as to the extent to which the Supplier is entitled to use and process Personal Data. The Supplier shall not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier to the extent that such action or omission resulted directly from the Customer’s instructions.
7.8 The Supplier may authorise a third party (sub-processor) to process Personal Data provided that the sub-processor’s contract: (a) is on terms which are substantially the same as those set out in the Contract; and (b) terminates automatically on termination of the Contract for any reason.
8. Limitation of liability
8.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss or corruption of software, data or information; (f) loss of or damage to goodwill; or (g) any indirect or consequential loss.
8.3 Subject to clause 8.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to one (1) month’s package charges paid under the Contract.
8.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.5 This clause 8 shall survive termination of the Contract.
9. Termination
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if: (a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of being notified in writing to do so; (b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; (c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or (d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if: (a) the Customer fails to pay any amount due under the Contract on the due date for payment; or (b) there is a change of control of the Customer.
9.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if: (a) the Customer fails to pay any amount due under the Contract on the due date for payment; (b) the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); (c) the Supplier reasonably suspects that the Customer’s use of a Service is in breach of any applicable legislation, regulation, guidelines or codes of practice or any other reasonably suspected abuse or bad practice; or (d) the Supplier reasonably believes that the Customer is about to become subject to any of them.
10. Consequences of termination
10.1 On termination of the Contract: (a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and (b) the Customer shall return all of the Supplier Materials which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11. General
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including without limitation acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil commotion, war, cyber-attack, denial-of-service attack, failure of a utility service or transport network, or industrial dispute.
11.2 Assignment and other dealings. (a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over, or deal in any other manner with any or all of its rights and obligations under the Contract. (b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
11.3 Confidentiality. (a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b). (b) Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract, provided that such persons comply with this clause 11.3; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. (c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement. (a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. (b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. (c) Nothing in this clause shall limit or exclude any liability for fraud.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.8 Notices. (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case), or by email to info@weareorca.com. (b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and if sent by email, at the time of transmission, provided that no bounce-back or error message is received. (c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights. (a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. (b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
11.12 Telephone numbers. Unless otherwise agreed in writing, all telephone numbers supplied by the Supplier to the Customer remain the property of the Supplier. The Supplier reserves the right to issue the Customer a new telephone number at any time.
11.13 Acceptable Use. The Services must not be used for any unlawful, fraudulent, offensive, harmful or otherwise immoral purpose, must comply with all applicable laws, regulations and industry codes, and must comply with the Supplier’s Acceptable Use Policy as updated from time to time.
Contact: Orca Business Support Limited, 8 Wilkinson Business Park, Wrexham, LL13 9AE | Tel: 0844 310 1200 | Email: info@weareorca.com