These terms and conditions (“Terms and Conditions”) shall apply to the services set out in the attached order form, quotation OR confirmation email which shall together constitute the “Services”) to be provided to you (“Client”) by OnDemand Communication Limited trading as Loopel, [a company registered in England under number 10330302 whose registered office is at 2 Exchange Quay, Salford, Greater Manchester, M5 3EB (“Loopel”).
2. Formation of Contract
2.1 This confirmation email, direct debit instruction form or email constitutes written confirmation of Loopel’s acceptance of the Client’s order for the Services (as agreed between Loopel and the Client).
2.2 Therefore, upon Loopel’s delivery of this confirmation email or direct debit instruction form, Loopel and the Client have entered into a contract for the provision of the Services and during the Term (defined below), Loopel shall provide the specified Services subject to the payment of applicable fees (“Fees”).
2.3 The Services are described in more detail in the quote given to you to which you accept in this contract. Loopel does not give any representation, warranties or undertakings in relation to suitability of the Services or otherwise and any representation, condition or warranty which might be implied or incorporated by statute, common law or otherwise is excluded to the fullest extent permitted by law.
2.4 If and to the extent that any software is provided by Loopel as part of the Services, it is provided under a non-transferable licence for the sole purpose of using the Services. If and to the extent that Loopel does not own the software or any other equipment provided as part of the Services, the Client agrees and accepts that its use of such items is subject to the terms and conditions of applicable third parties and licensors.
3. Fees and Payment
3.1 Unless otherwise stated, the Fees are payable monthly in arrears regardless of Loopel’s delivery of an invoice or otherwise. The monthly Fees are payable by direct debit (or such other means of payment as may be agreed by Loopel in its absolute discretion) and, if Fees are not paid by direct debit, those Fees shall be made in cleared funds to such bank as Loopel may from time to time nominate and the Client shall pay those Fees within 14 days of the date of the applicable monthly payment due date.
3.2 Unless a reasonable dispute about an invoice is raised within 7 days of the payment due date, all sums which remain unpaid after the monthly payment due date shall incur interest on a daily basis at 4% above the base rate of Barclays Bank plc compounded quarterly from time to time until payment is made in full of any such outstanding sums or at the statutory rate applicable to late payment of commercial debts (if higher).
3.3 The Fees stated are payable without set-off or other deduction, are exclusive of any applicable VAT and are exclusive of any other taxes or levies which are imposed or charged by any competent authority. All Fees must be paid in the currency specified.
3.4 At its discretion, Loopel may assign to the Client a credit limit in respect of Fees payable for the Services, which such limit shall be confirmed in writing by Loopel and the exceeding of which limit by the Client shall constitute a material breach of these Terms and Conditions.
3.5 At any time during the Term, Loopel may increase the Fees payable for the Services subject to no less than one month’s written notice to the Client of such increase. (In the event of such increase, the Client may exercise its right to terminate without cause, as set out under these Terms and Conditions).
3.6 Notwithstanding clause 3.5 above, Loopel may increase the Fees annually with effect on the 1st April each year provided that such increase does not exceed the percentage increase in the Retail Prices Index in the preceding 12 months.
4. Liability and Indemnity
4.1 Loopel shall perform the Services with reasonable skill and care.
4.2 Loopel shall not be liable to the Client or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of Loopel’s obligations if such delay or failure is due to any cause beyond Loopel’s reasonable control.
4.3 With the exception of personal injury or death caused by its negligence, losses caused by its fraudulent misrepresentation or anything else for which liability cannot be lawfully be limited or excluded, Loopel’s liability to the Client for any loss or damage directly caused as a result of its negligence or breach of these Terms and Conditions shall be limited to the total Fees paid or payable to Loopel by the Client in the current period during which the loss-causing event occurred to a limit of that months invoice total.
4.4 The Services are for business users only whose customers, potential customers and others may wish to contact them. The Services are not intended for private use by individual consumer clients. In any case, Loopel will not be liable to the Client for any (i) loss of profits, sales, business, or revenue; (ii) business interruption; (iii) loss of anticipated savings; (iv) loss of business opportunity, goodwill or reputation; or (v) any other indirect loss or damage.
4.5 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of these Terms and Conditions shall not be the responsibility or fault of Loopel. Loopel reserves the right to suspend its provision of the Services in the event of Client’s late payment of Fees due and/ or other serious breach of these Terms and Conditions.
5. Client’s Obligations
5.1 The Client shall use all reasonable endeavours to provide all pertinent information to Loopel that is necessary for Loopel’s provision of the Services. In the event that Loopel requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
5.2 The Client may, from time to time, issue reasonable instructions to Loopel in relation to the provision of the Services. Any such instructions should be compatible with the service specifications provided by Loopel and the Fees payable will be revised accordingly.
5.3 The Client must ensure that calls are diverted to Loopel and that any other relevant arrangements are made by the Client, if they are reasonably required for its receipt of the Services and if they are within its reasonable control.
5.4 For the avoidance of doubt, if any consents, licences or other permissions are needed from any third parties in relation to the provision of the Services ton behalf of the Client, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part pf the Services).
5.5 For the avoidance of doubt, the Client agrees not to use the Services in any manner that is, in the reasonable opinion of Loopel, obscene, immoral or otherwise illegal or harmful in any way.
6. Term and Termination
6.1 The Services under these Terms and Conditions shall be provided for an initial period of 3 calender months from the date of the confirmation email, direct debit instruction form, delivered by Loopel for such Services and shall continue indefinitely thereafter unless and until (a) terminated upon 30 days’ written notice of termination from one party to the other from the date of the next invoice date or (b) otherwise terminated in accordance with these Terms and Conditions. Such initial period and subsequent period until termination shall together constitute the “Term”.
6.2 Either party may also terminate these Terms and Conditions with immediate effect by giving written notice to the other if: (i) any sum owing to that party by the other under these Terms and Conditions is not paid within 14 days of the due date for payment; (ii) the other party commits any other material breach of any of these Terms and Conditions and or repeatedly breaches them to an extent that can reasonably be deemed material and, if capable of remedy, fails to remedy such within 14 days after being given written notice, providing full particulars of the breach and requiring it to be remedied; (iii) the other party has an insolvency order or similar made against it or such party is deemed or is reasonably at risk of being deemed insolvent under the law of any jurisdiction;
7. Effect of termination
7.1 For the avoidance of doubt, the parties agree that upon termination of these Terms and Conditions for any reason, any sum owing by either party to the other under any of the provisions of these Terms and Conditions, shall become immediately due and payable.
7.2 If the Services included the provision of any equipment or other tangible items to the Client, it shall return all such equipment and items to Loopel without unreasonable delay upon termination, failing which Loopel shall be permitted to enter the Client’s premises to take possession of it and shall be reimbursed by the Client for the costs incurred (if any). Until such equipment has been returned or repossessed, the Client shall be liable for its safekeeping despite termination of these Terms and Conditions.
8. Other important terms
8.1 All notices under these Terms and Conditions shall be in writing (which includes email), must be addressed to the most recent address, email address or fax number of the party and shall be deemed to have been duly given: (i) when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; (ii) on the fifth business day following posting by ordinary first-class post.
8.2 No waiver by Loopel of any breach of these Terms and Conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
8.3 In the event that one or more of these Terms and Conditions, or a part of one, is found to be unlawful, invalid or otherwise unenforceable, that / those provisions of part of a provision shall be deemed severed from the remainder of these Terms and Conditions (which shall remain valid and enforceable).
8.4 Except to the extent that additional documents are expressly incorporated, these Terms and Conditions contain the entire Agreement between the parties relating to the subject matter and supersede any previous agreements, arrangements, undertakings or proposals, oral or written. Except to the extent stated otherwise in these Terms and Conditions, the Terms and Conditions may be varied only by a document signed by both parties and Loopel reserves the right to take up to 10 working days to implement any such agreed variation.
8.5 Loopel will not share any data regarding the Client with any third parties for any reasons (other than for the purposes of providing the Services) without the prior consent (or request) of the Client. Personal data will only be collected, processed and held by Loopel in accordance with current GDPR regulations.
8.6 Loopel shall have the right to assign its rights and obligations under these Terms and Conditions, subject to its reasonable advance notice to the Client of such assignment.
8.7 Loopel may refer to the Client’s name and products when presenting to other potential or current customers. Loopel may also use the Client’s logos in any publicity materials or on its website. Neither party shall make any press announcements or publicise the existence of these Terms and Conditions or the parties’ relationship in any way unless agreed by the parties in advance. Consent sought under this clause by Loopel shall not be unreasonably withheld or delayed by the Client. Client must not publish in any form any negative or derogatory remarks or material about Loopel in any public form without express written permission from Loopel. Customer must not use Loopel logo or name in any public form without express written permission from Loopel.
8.8 Client agrees not to employ (whether as an employee or a contractor), approach or attempt to entice away any of the persons who have been involved in the provision of the Services during the Term of this Agreement and for a period of six months following its termination unless (a) Loopel agree otherwise and (b) the Client pays to Loopel an introduction fee equivalent to 75% of that person’s annual remuneration package on leaving based on a thirty-five (35) hour working week.
8.8 These Terms and Conditions are governed by, and shall be construed in accordance with, the laws of England and Wales and disputes concerning them shall fall within the non-exclusive jurisdiction of the courts of England and Wales.