Terms & Conditions
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Terms & Conditions
1.1 The following words have the following meaning:
“BT” means British Telecommunications Plc;
“Customer Care Centre” means the Odyssey Systems customer care centre;
“Equipment” means any equipment which Odyssey Systems supplies to the Customer for the provision of the Services;
“PBX” means a BABT approved private automatic branch exchange;
“Select Access” means the insertion of the unique Odyssey Systems access code by the Customer pre-programming a computer modem or telecommunications equipment or by manual dialling of the access code;
“Service Commencement Date” means, in respect of a Site, the date on which calls made from the Site can be routed over the Odyssey Systems Network;
“Services” means such of the indirect access services requested by the Customer, the Customer’s requirements for which are set out in the Customer Order Form. The indirect access services comprise:- the routing of calls from the Site(s) over the Odyssey Systems Network to the destination telephone number which has been dialled, using exchange lines provided to the Site by BT. Calls are routed over the Odyssey Systems Network by inserting a unique Odyssey Systems access code (which Odyssey Systems will notify to the Customer) in front of the destination telephone number dialled. The access code may be inserted by the Select Access method or the Switch Access method.
“Switch Access” means the automatic insertion of the unique Odyssey Systems access code by the Customer procuring that the maintainer of its PBX upgrade the software in the PBX so that the access code is inserted. It is the Customer’s responsibility to procure that the maintainer of the PBX carries out the software upgrade correctly;
1.2 A reference to an Act of Parliament in this Agreement includes any amendment, replacement or re-enactment and includes any by-laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under it and any conditions imposed by it.
1.3 Headings are inserted for ease of reference only and do not affect the interpretation of this Agreement.
1.4 References in this Agreement to Clauses and Schedules are references to clauses of or schedules to this Agreement. References to Paragraphs are references to paragraphs of the Schedule in which the reference is made, unless otherwise explicitly provided.
1.5 Unless the context otherwise requires, the singular includes the plural and vice versa.
2 Provision of Services
2.1 Odyssey Systems will provide the Services at each Site from the Service Commencement Date until the Services are cancelled at the Site or the Agreement expires or is terminated in accordance with the terms of this Agreement. Odyssey Systems shall not be obliged to provide Services until it is satisfied with the status of the Customer and formally accepts in writing a properly completed Order form from the Customer.
2.2 Odyssey Systems will make all reasonable efforts to provide the Services in a reliable manner and in accordance with good industry practice. The Customer must notify Odyssey Systems as soon as it becomes aware of any fault in the Services and Odyssey Systems will correct any fault as soon as reasonably practicable. If Odyssey Systems provides assistance to the Customer for the resolution of a fault, but it is subsequently discovered that the fault lies with neither the Equipment nor the Odyssey Systems Network, the Customer shall pay Odyssey Systems for resolution of the fault on a time and materials basis at Odyssey Systems’ current rates from time to time.
2.3 Either party may cancel the provision of the Services at any Site by giving 42 days written notice to the other party once the minimum term has expired.
3 Changes to the Odyssey Systems Network, Services or Equipment
3.1 Odyssey Systems may at any time change the Odyssey Systems Network, the Services or any Equipment:
(a) if it needs to do so to comply with any applicable safety or other statutory requirements; or
(b) where the change does not materially detract from the quality or performance of the Services.
3.2 Odyssey Systems will pay for any change to the Odyssey Systems Network, Services or Equipment made under this Clause.
4 Compliance with laws and obligations
The Customer must ensure that it complies at all times with all laws and obligations, including any licence under the Act which is applicable to the Customer. The Customer must also obtain any relevant consents and approvals for the installation and use of any Equipment at the Site. Odyssey Systems will have no liability under this Agreement for failure to comply with its obligations in any case where the Customer does not comply with any such relevant laws or obligations or does not obtain such consents or approvals.
5.1 The Customer must prepare the Site(s) in accordance with Odyssey Systems instructions so that any necessary Equipment can be installed. The Customer will meet the costs of preparing the Site(s).
5.2 The Customer must provide adequate electricity supply and suitable earth connection in the room for the operation of any Equipment to be installed at the Site(s), and in the case of Managed Access, a network test and termination point from the BT network.
5.3 The Customer must assist and co-operate with Odyssey Systems to enable Odyssey Systems to carry out its obligations under this Agreement, including giving access to the Site(s) to install and maintain the Equipment.
5.4 Odyssey Systems will normally carry out installation and maintenance work referred to in Clause 5.3 during normal working hours but may, on reasonable notice (which will not be less than 12 hours except in an emergency) require the Customer to provide access at other times. At the Customer’s request Odyssey Systems may agree to work outside normal working hours but the Customer may be asked by Odyssey Systems to pay any relevant overtime charges for relevant staff.
5.5 Odyssey Systems will comply with all applicable health and safety laws when it undertakes installation and maintenance work under this Clause.
6.1 If Odyssey Systems provides the Customer with any Equipment then unless the Customer separately buys or leases such Equipment from Odyssey Systems under separate terms:
(a) the Equipment will remain Odyssey Systems property at all times; and
(b) the Customer will not interfere with or modify the Equipment and will not remove or alter any identification mark on the Equipment showing that it is owned by Odyssey Systems; and
(c) when the ownership of the Equipment is relevant, the Customer will make clear to third parties that the Equipment is Odyssey Systems’ property; and
(d) the Customer is responsible at all times for the safe use and safe custody of the Equipment whilst it is in the Customer’s custody, including procuring and maintaining an appropriate insurance policy; and
(e) the Customer must keep the Equipment at the Site in accordance with Odyssey Systems’ instructions; and
(f) the Customer must permit Odyssey Systems’ to inspect or test the Equipment remotely at such times as may be agreed between Odyssey Systems and the Customer, such agreement not to be unreasonably withheld or delayed; and
(g) the Customer must not attempt to let, sell, charge or otherwise deal with the Equipment; and
(h) the Customer must not permit or suffer any execution or distress to be levied or used against the Equipment or permit or suffer the Equipment to be seized under or affected by any distress, execution or other legal process.
6.2 The Customer will be liable to Odyssey Systems for any loss or damage to the Equipment except where it can be shown that Odyssey Systems was responsible for such loss or damage. The Customer must notify Odyssey Systems immediately of any loss or damage to the Equipment.
6.3 Odyssey Systems will provide all maintenance for the Equipment. Odyssey Systems may either remotely (or at the Site by prior arrangement) make or procure any inspection, test, modification, change, addition to or replacement of any Equipment provided Odyssey Systems acts in a reasonable manner.
7 Provisions relating to Services
7.1 The Customer will use the Services in accordance with any reasonable operating instructions Odyssey Systems may provide.
7.2 The Customer will be responsible for ensuring that the Services are not used for the sending of any defamatory, offensive or abusive, or obscene or menacing material or in a manner which infringes the rights of any person (including rights of copyright or confidentiality) and if Odyssey Systems incurs any liability to any person or expense in any way connected with any such use then the Customer will promptly reimburse such amounts to Odyssey Systems.
8 Suspension of Services
8.1 Odyssey Systems may, without terminating this Agreement, immediately suspend part or all of the Services until further notice if:
(a) Odyssey Systems would be permitted to terminate this Agreement under Clause 10.1; or
(b) Odyssey Systems is obliged to comply with an order, instruction or request of Government, an emergency services organisation, or other competent administrative authority. Odyssey Systems will give the Customer the maximum period of notice practicable in the circumstances if it needs to suspend the Services for this reason; or
(c) Odyssey Systems needs to maintain or upgrade the Odyssey Systems Network at the Site. Odyssey Systems will give the Customer the maximum period of notice practicable in the circumstances if it needs to suspend the Services for this reason.
8.2 If it is necessary for Odyssey Systems to suspend the Services under Clause 8.1(b) or Clause 8.1(c), it will do so for as short a period as is practicable in the circumstances.
8.3 If Odyssey Systems suspends the Services due to any event in Clause 8.1, this will not exclude its right to terminate this Agreement later in respect of that or any other event, nor will it prevent Odyssey Systems from claiming damages from the Customer.
9 Charges and Payment
9.1 Odyssey Systems will charge the Customer for the Services, the prices specified in the “Odyssey Systems Access Business Prices” tariff or other relevant “Odyssey Systems” tariff as may be amended from time to time. Odyssey Systems will invoice the Customer monthly in arrears and the Customer must pay the charges by the fourteenth day after the date of invoice. Odyssey Systems may require the Customer to pay all sums due under this Agreement on demand.
9.2 Odyssey Systems reserves the right to charge daily interest on all amounts not paid in accordance with Clause 9.1 until payment is received in full at the rate equal to three percent above Barclays Bank plc Base Lending Rate as current from time to time whether before or after judgment and this right to charge interest is without prejudice to Odyssey Systems’ right to treat non-payment of sums due by the Customer as a repudiatory breach of this Agreement.
9.3 All sums due to Odyssey Systems under this Agreement are exclusive of Value Added Tax and any other applicable taxes which may from time to time be introduced, which
shall be charged in accordance with the relevant regulations in force at the time of making the taxable supply and must be paid by the Customer.
9.4 Odyssey Systems may at any time change the charges specified in the “Odyssey Systems Access Business Tariff” or other relevant “Odyssey Systems” tariff by:
(a) decreasing the charges without notice; or
(b) increasing the charges by giving the Customer (where practicable) 30 days written notice.
9.5 Odyssey Systems may, on seven days written notice to the Customer, stipulate a reasonable monetary limit that will apply to all charges due or which may become due to Odyssey Systems from the Customer, whether or not they have been billed by Odyssey Systems. If at any time the amount of charges payable to Odyssey Systems (whether or not billed) exceeds the stipulated monetary limit, Odyssey Systems will immediately notify the Customer and any amounts incurred in excess of the stipulated monetary limit will immediately become due and payable.
10.1 Without prejudice to any other rights or remedies Odyssey Systems may have (either under this Agreement or at law), Odyssey Systems may terminate this Agreement or may cancel the Services at any Site immediately by serving written notice on the Customer if:
(a) the Customer becomes Insolvent; or
(b) the Customer fails to make any payment when it is due under this Agreement after receiving 14 days written notice to do so from Odyssey Systems; or
(c) the Customer commits a breach of any material obligation under this Agreement and (in the case of a remediable breach) fails to remedy the breach after receiving 30 days written notice to do so from Odyssey Systems; or
(d) the Customer’s telecommunications licence under which the Customer has the right to run its telecommunications system is revoked or amended (and not replaced by an equivalent licence or right) so that Odyssey Systems is not permitted by law to provide the Service; or
(e) the Customer exceeds any limit stipulated by Odyssey Systems pursuant to Clause 9.5 and the Customer does not ensure that it comes within the limit after Odyssey Systems has made a demand for the amount of the stipulated limit pursuant to Clause 9.5.
10.2 The Customer may terminate this Agreement immediately by serving written notice on Odyssey Systems if Odyssey Systems becomes insolvent.
10.3 In this Clause “Insolvent” means the appointment of or the application to a court for the appointment of a liquidator, provisional liquidator, administrator, administrative receiver or receiver, the entering into a scheme of arrangement or composition with or for the benefit of creditors generally, any reorganisation, moratorium or other administration involving its creditors or any class of its creditors, a resolution or proposed resolution to wind it up, or becoming unable to pay its debts as and when they fall due or becoming deemed to become unable to pay its debts as and when they fall due within the meaning of Section 123 of the Insolvency Act 1986.
11 After Termination
11.1 On cancellation of any part of the Services under Clause 2, termination of this Agreement or cancellation of the Services at a Site under Clause 10, or termination of this Agreement under Clause 13.2, all amounts owed by the Customer to Odyssey Systems shall become immediately due and payable in full on demand and the Customer must:
(a) immediately stop using the Services to the extent that they have been cancelled or the Agreement has been terminated; and
(b) immediately stop using any relevant Equipment; and
(c) allow Odyssey Systems to enter the Sites during normal business hours to remove the relevant Equipment. The Customer’s obligations in respect of the Equipment will continue to apply until Odyssey Systems has removed the relevant Equipment.
11.2 The provisions of this Clause continue to apply despite the termination or expiry of this Agreement.
12 Limitation of Liability
12.1 Neither party is liable to the other party except as expressly set out in this Agreement, and has no other obligation or liability whatsoever in contract, tort or otherwise to the other party.
12.2 Nothing in this Agreement excludes or restricts either party’s liability;
(a) for death or personal injury resulting from that party’s negligence or its employees’ negligence while acting in the course of the employment; or
(b) arising from any defect in Equipment if and to the extent that party is liable under Part 1 of the Consumer Protection Act 1987 or any safety regulations made under it; or
(c) arising from a breach by that party of its statutory duty under section 41(1) of the Consumer Protection Act 1987, not to contravene any obligation contained in safety regulations made under section 11 of the Consumer Protection Act 1987.
12.3 Unless otherwise expressly stated, either party’s liability in contract, tort of otherwise including any liability for negligence howsoever arising out of or in connection with the performance of either party’s obligations under this Agreement is limited to £1 million for one event or series of related events and £2 million in total for all events arising in any twelve month period.
12.4 Without prejudice to the Customer’s obligations to pay Odyssey Systems the charges or for any Equipment under Clause 6.2, neither party will be liable to the other under this Agreement in contract, tort (including negligence) or otherwise for any loss of revenue, business contracts, anticipated savings, or profits.
12.5 Neither party will be liable to the other for any failure to comply with its obligations under this Agreement to the extent that this liability arises as a result of the failure by the other party to fulfil its obligations under this Agreement.
12.6 The provisions of this Clause continue to apply despite the termination or expiry of this Agreement.
13 Force Majeure
13.1 Neither party will be obliged to carry out any obligations under this Agreement where performance of such obligation is prevented due to any cause beyond the first party’s reasonable control, including but not limited to any act of God, severe weather, failure or shortage of power supplies, flood, drought, lightning or fire, labour shortage or labour dispute, toe act or omission of Government, highways, authorities, other telecommunications operators or administrations or other competent authority, the obstruction by a third party of line of sight between microwave installations, war, military operations, or riot, or difficulty, delay or failure in manufacture, production or supply by third parties of either the Equipment or Service or both resulting from the same or a similar type of force majeure event.
13.2 If any event described in Clause 13.1 lasts for more than three months from the date of its commencement and that event prevents either party from performing all or a material part of its obligations during that period either party may, by giving 14 days written notice to the other party terminate this Agreement.
14 Information and Confidentiality
14.1 The Customer will promptly provide Odyssey Systems (free of charge) with any information Odyssey Systems may reasonably require to enable it to proceed with the performance of its obligations under this Agreement, including any information which Odyssey Systems may reasonably request for the purpose of credit verification and debt collection purposes and the Customer permits Odyssey Systems to use such information and to provide it to third parties acting on behalf of Odyssey Systems for such purposes.
14.2 Subject to Clause 14.3, neither the Customer nor Odyssey Systems will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
14.3 The Customer acknowledges that Odyssey Systems may, and permits Odyssey Systems to use information about the calls routed through any Equipment including but not limited to origin, destination, duration, route and time, so that Odyssey Systems:
(a) can perform its obligations under this Agreement and maintain or upgrade the quality of the telecommunications services it provides or offers; and
(b) can collate the information and other customers’ information to produce non-customer-specific statistics to assist Odyssey Systems in its network and business planning.
Both parties must comply with the Data Protection Act 1984 when dealing with information given to the other party under this Agreement.
14.4 Odyssey Systems Limited may record incoming and/or outgoing calls to their offices, for quality and training purposes.
15 Intellectual Property Rights
15.1 All legal and beneficial rights in software in whatever form which Odyssey Systems provides to the Customer for the purpose of using the Services or Equipment will remain at all times Odyssey Systems property or the property of its licensor.
15.2 To the extent that it is so entitled, Odyssey Systems grants the Customer a non-exclusive non-transferable licence to use such software for the sole purpose of using the Services. The Customer will not reproduce the software, save that the Customer will be entitled to make a single back-up copy for security purposes only. The Customer will not modify, adapt, translate, reverse engineer or disassemble the software but if the Customer wishes to exercise its rights under section 50B of the Copyright, Designs and Patents Act 1988 then Odyssey Systems will give the Customer information about the terms on which such rights may be exercised.
15.3 Copyright in all documents, drawings and information including if applicable any access codes supplied to the Customer in connection with this Agreement remain vested in Odyssey Systems or the copyright owner. Such documents, drawings and information are confidential and will not be copied, disclosed or used (except for the purpose for which they were supplied) with Odyssey Systems prior written consent.
Notices given by Odyssey Systems shall be sent to the Customer’s address specified on the front page and invoices shall be sent to the Customer’s billing address set out in the schedule, each as varied by notice in writing from time to time. Notices to Odyssey Systems from the Customer must be to the Customer Care Centre. Notices given under this Agreement must be given in writing.
17.1 Subject to Clause 17.2, the Customer may not assign or try to assign or otherwise deal with any of its rights and obligations under this Agreement without Odyssey Systems prior written consent.
17.2 Odyssey Systems may assign, sub-contract or otherwise deal with all or any of its rights and obligations under this Agreement.
18 Change to the Agreement
Notwithstanding any other provision of this Agreement, Odyssey Systems may change the Agreement at any time by notice in writing to the Customer if it needs to do so to comply with any law or statutory obligation and will use its reasonable endeavours to ensure that any change to the Agreement does not result in any deterioration in either the Services or Equipment or both.
19.1 Failure by either party to enforce any of its rights under this Agreement is not to be taken as or deemed to be a waiver of that right unless the waiving party acknowledges the waiver in writing.
19.2 Part or all of any Clause of this Agreement that is unenforcable or illegal will be severed from this Agreement and will not affect the enforcability of the remaining provisions of this Agreement.
19.3 This Agreement is governed by the law of England and Wales, and the parties agree to submit disputes in connection with this Agreement to the exclusive jurisdiction of the courts of England and Wales.