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Terms & Conditions

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).

  1. Interpretation
    • The following definitions and rules of interpretation apply in these Conditions:

Acceptable Use Policy: the policy as provided to the Customer by Orca and as amended from time to time.

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), and as illustrated in the Service Licence Agreement

Commencement Date: the date, as illustrated in the Service Licence Agreement.

Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.

Contract: shall mean the Service Licence Agreement, these Conditions and any further contractual documentation between Orca and the Customer for the supply of Services in accordance with these Conditions.

Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Customer: the person or firm who purchases Services from Orca, as identified in the Service Licence Agreement.

Customer Default: has the meaning set out in clause 4.3

Controller: as defined in the Data Protection Legislation.

Data Protection Legislation:  all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);

Data Subject: as defined in the Data Protection Legislation.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks 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 and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Minimum Agreement Term: shall mean the minimum term of the Contract as identified in the Service Licence Agreement, and as from the Commencement Date.

Orca: shall mean Orca Business Support Limited registered in England and Wales with company number 07333816 whose registered office is at 8 Wilkinson Business Park, Wrexham, United Kingdom, LL13 9AE.

Orca’s Call Recording Legal Requirements Guidance:  as provided to the Customer by Orca and as amended from time to time.

Package Allowance: the allowance of calls, as set out in the Service Licence Agreement

Package Price: set out in the Service Licence Agreement

Personal Data: as defined in the Data Protection Legislation.

Processor: as defined in the Data Protection Legislation.

Processing and process: as defined in the Data Protection Legislation.

Service Licence Agreement:  the service licence agreement provided in writing by Orca to the Customer.

Services: the services supplied by Orca to the Customer, as outlined in the Service Licence Agreement.

Trial Period: any trial period engaged by the Customer for the Services prior to the Commencement Date.

UK GDPR: has the meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

 

  • A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
  • Any words following the terms 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.
  • A reference to writing or written includes email but excludes fax.

 

  1. Basis of contract
    • The Service Licence Agreement constitutes a quotation by Orca to provide the Services in accordance with these Conditions. It shall not be deemed an offer by Orca and is only valid for a period of 20 Business Days from the date of issue.
    • If the Customer wishes to engage Orca on the basis of the Service Licence Agreement, they shall sign the Service Licence Agreement and submit it to Orca as an offer.
    • The Service Licence Agreement shall be deemed to be accepted only when it has been signed by both the Customer and Orca, and copies provided to the respective party.
    • The Services shall commence on the Commencement Date.
    • Unless terminated earlier in accordance with clause 9 (Termination), this agreement shall continue in force.
    • Any samples, drawings, illustrations, descriptive matter or advertising issued by Orca or contained in Orca’s catalogues or brochures are supplied solely to give a general indication of the Services described. They shall not form part of the Contract or have any contractual force.
    • 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.
    • These Conditions shall apply during any Trial Period.

 

 

  1. Supply of Services
    • Orca shall supply the Services to the Customer in all material respects.
    • Orca shall use all reasonable endeavours to meet any performance dates specified in the Service Licence Agreement, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
    • Orca reserves the right to amend the Contract if necessary to comply with any applicable law or regulatory requirement, or where such amendment does not materially affect the nature or quality of the Services. Orca shall notify the Customer in any such event.
    • Orca warrants to the Customer that the Services will be provided using reasonable care and skill.
    • All Services are subject to the Acceptable Use Policy.

 

  1. Customer’s obligations
    • The Customer shall:
      1. co-operate with Orca in all matters relating to the Services;
      2. provide Orca and its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Orca;
      3. provide Orca with such information and materials as Orca may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
      4. prepare the Customer’s premises and equipment for the supply of the Services;
      5. 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 you to upload music files for a music on hold feature;
      6. comply with all relevant legislation, regulations, guidelines and codes of practice, and shall not use the Services for any illegal or immoral purpose; and
      7. comply with any additional obligations as set out in the Service Licence Agreement, or as may reasonably be required from Orca from time to time.
    • If the Services include call recording of inbound and/or outbound calls the Customer accepts that it is the Customer’s responsibility to obtain legal advice to ensure they are fully compliant before recording any calls. The Customer further confirms that they will comply with all legal requirements when using any call recording product and agree that neither Orca nor their suppliers shall have any liability for any costs or claims which may be incurred as a result of any failure by the Customer to comply with any legal requirements whether or not they were aware of the requirement.
    • If Orca’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):
      1. without limiting or affecting any other right or remedy available to it, Orca 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 Orca’s performance of any of its obligations;
      2. Orca shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer’s failure or delay to perform any of its obligations as set out in clause 4.1 or clause 4.2 ; and
      3. the Customer shall reimburse Orca on written demand for any costs or losses sustained or incurred by Orca arising directly or indirectly from the Customer’s failure or delay to perform any of its obligations as set out in clause 4.1 or clause 4.2 or Customer Default.
    • Where Services include the recording of inbound and/or outbound calls, the Client shall ensure that all callers are clearly informed, prior to connection with Orca, that the call may be recorded for training, monitoring and/or quality purposes. Such notice should be delivered via the Client’s Interactive Voice Response or other automated message system before diversion to Orca. Where the Client is unable to implement such notice, Orca reserves the right to play a pre-recorded notice at the start of the call. The Client acknowledges that it remains solely responsible for compliance with applicable Data Protection Legislation where proper notice has not been provided.

 

  1. Charges and payment
    • Orca reserves the right to increase the Charges effective from each anniversary of 1 April in line with the percentage increase in the Retail Prices Index over 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 most recently available figure for the percentage increase in the Retail Prices Index.
    • Orca shall invoice the Customer monthly as follows:
      1. in advance in respect of the Package Price; and
      2. monthly in arrears in respect of any other Charges, including but not limited to calls over the Package Allowance.
    • The Customer shall pay each invoice submitted by Orca:
      1. within 14 days of the date of the invoice and by direct debit or in accordance with any credit terms agreed by Orca and confirmed in writing to the Customer; and
      2. in full and in cleared funds to a bank account nominated in writing by Orca,

and

  • Time shall be of the essence for any payments payable by the Customer.
  • All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT).
  • Where any taxable supply for VAT purposes is made under the Contract by Orca to the Customer, the Customer shall, on receipt of a valid VAT invoice from Orca, pay to Orca such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
  • If the Customer fails to make a payment due to Orca under the Contract by the due date, then, without limiting Orca’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 under this clause 5 will accrue each day at 5% per annum.
  • All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding.
  • If the Customer provides Orca with a telephone number that results in charges to Orca for inbound calls, Orca reserves the right to recover the full cost of such charges from the Customer.

 

  1. Intellectual property rights
    • 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 Orca.
    • The Customer grants Orca a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Orca for the term of the Contract for the purpose of providing the Services to the Customer.

 

  1. Data protection and data processing
    • Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
    • The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller, and Orca is the Processor.
    • Without prejudice to the generality of clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Orca and/or lawful collection of the Personal Data by Orca on behalf of the Customer for the duration and purpose of this Contract.
    • Without prejudice to the generality of clause 7.1, Orca shall, in relation to any Personal Data processed in connection with the performance by Orca of its obligations under this Contract:
      1. only process the Personal Data in accordance with the provision of the Services or the Customer’s instructions from time to time; and
      2. take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

 

  • Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all reasonable costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the party or its employees or agents to comply with any of its obligations under this clause 7.
  • The Customer acknowledges that Orca is reliant on the Customer for direction as to the extent to which Orca is entitled to use and process the Personal Data. Consequently, Orca will not be liable for any claim brought by a Data Subject arising from any action or omission by Orca, to the extent that such action or omission resulted directly from the Customer’s instructions.
  • The Customer consents to Orca appointing a third-party processor of Personal Data under this Contract as Orca may reasonably require. Orca confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 7 and that shall termination automatically on termination of this Contract.

 

  1. Limitation of liability:

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

  • References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
  • Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.
  • Nothing in the Contract shall limit or exclude Orca’s liability for:
    1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
    2. fraud or fraudulent misrepresentation; or
    3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
  • Subject to clause 8.3, Orca shall not be liable to the Customer arising under or in connection with the Contract for:
    1. loss of profits;
    2. loss of sales or business;
    3. loss of agreements or contracts;
    4. loss of anticipated savings;
    5. loss of use or corruption of software, data or information;
    6. loss of or damage to goodwill; or
    7. any indirect or consequential loss.
  • Subject to clause 8.3, Orca’s total liability to the Customer arising under or in connection with the Contract shall be limited to 1 month’s Package Price paid under the Contract.
  • Orca shall not be liable to the Customer for the acts, omissions, performance, or non-performance of any suppliers, subcontractors, or other third parties engaged in connection with the Services. Orca does not assume and expressly disclaims any responsibility for delays, defects, damages, losses, or failures caused in whole or in part by any such third parties.
  • 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.
  • Unless the Customer notifies Orca that it intends to make a claim in respect of an event within the notice period, Orca shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 60 days from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
  • This clause 8 shall survive termination of the Contract.

 

  1. Termination
    • Orca may terminate this Contract by providing the Customer with written notice of at least one month.
    • The Customer may terminate this Contract by providing Orca with written notice of at least two months’, but notice to termination shall not be valid if given within the Minimum Agreement Term.
    • Without affecting any other right or remedy available to it, Orca may at its discretion terminate the Contract or suspend the supply of the Services with immediate effect by giving written notice to the Customer if:
      1. the Customer fails to pay any amount due under the Contract on the due date for payment;
      2. Orca reasonably suspects that the Customer’s use of a Service is in breach of any applicable legislation, regulation, guidelines or codes of practice;
      3. there is a change of control of the Customer;
      4. the Customer 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 that party being notified in writing to do so;
      5. the Customer 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;
      6. the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
      7. the Customer’s financial position deteriorates to such an extent that in Orca’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

 

 

  1. Consequences of termination
    • On termination of the Contract, the Customer shall immediately pay to Orca all of Orca’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Orca shall submit an invoice, which shall be payable by the Customer immediately on receipt.
    • Unless otherwise agreed in writing, all telephone numbers supplied by Orca to the Customer remain the property of Orca. Orca reserves the right to issue the Customer a new telephone number at any time, and is under no obligation to supply the Customer with the telephone number on termination or expiry of the Contract.
    • 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.
    • 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.

 

  1. General
    • 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 result from events, circumstances or causes beyond its reasonable control.
    • Assignment and other dealings.
      1. Orca 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.
      2. 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 Orca.
      1. 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)
      2. Each party may disclose the other party’s confidential information:
        1. 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. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
        2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
      3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
    • Entire agreement.
      1. 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.
      2. 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
      3. Nothing in this clause shall limit or exclude any liability for fraud.
    • 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).
    • 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.
    • 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.
      1. 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).
      2. 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.
      3. 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.
    • Third party rights.
      1. 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.
      2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
    • 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.
    • 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.