Our Terms & Conditions
In these terms and conditions (the Conditions, and each one a Condition) the following shall have the meaning set opposite them:
Client: the person or firm who purchases the Products and/or Services from Klowdfone
Contract: a contract formed between Klowdfone and a Client, which shall incorporate these Conditions
Data: data or information, stored on whatever medium and in whatever form including images, still and moving, and sound recordings
Failure: a failure of a Product or Service provided pursuant to a Contract at a time during which that Product or Service is covered by the terms of a technical support Service provided under a current an unexpired Contract (whether the same Contract as the original supply or not)
Intellectual Property Rights: all copyright, database rights, topography rights, design rights, trade marks, trade names, utility models, patents, domain names and any other intellectual property rights of a similar nature (whether or not registered) subsisting anywhere in the world
Klowdfone: Klowdfone is a trading name of Microcare Systems Limited (registered in England and Wales with company number 03204267), whose registered office is at The Exchange 5 Bank Street, Bury, BL9 0DN
Minimum Term: means the period of 12 months unless otherwise stated on the order form as notified to the customer by Klowdfone on entering into this Contract and in the Order Confirmation
Order Confirmation: the document by which Klowdfone confirm that the order of a Client is accepted, or such other document (including any specification) agreed between Klowdfone and the Client
Products: the products (or any part of them) set out in the Order Confirmation, which may include hardware and/or software
Services: the services supplied by Klowdfone to the Client as set out in the Order Confirmation
Small Business Customer: means a customer of Klowdfone who carries out an undertaking for which no more than ten individuals work (whether as employees or volunteers or otherwise), but who is not himself a Communications Provider
- BASIS OF SUPPLY
(a) Klowdfone shall supply and the Client shall acquire the Services and/or Products in accordance with a quotation of Klowdfone which is accepted in writing by the Client or any order of the Client which is accepted in writing by Klowdfone which shall in either case be subject to these Conditions.
(b) These Conditions constitute the only conditions upon which Klowdfone shall supply the
Services and/or Products and shall prevail over any other conditions which the Client’s purchase order or instruction to proceed may purport to impose. No variation of these Conditions shall be binding upon Klowdfone unless agreed in writing by a duly authorised representative of Klowdfone.
(c) Klowdfone employees or agents are not authorised to make any representations concerning the Services and/or Products unless confirmed by Klowdfone in writing. In entering into the Contract, the Client acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed, and the Contract made incorporating these Conditions constitutes the entire agreement between the parties.
(d) Any advice or recommendation given by Klowdfone or its employees or agents as to the application or use of the Services and/or Products which is not confirmed in writing by Klowdfone is followed or acted upon entirely at the Clients own risk and accordingly Klowdfone shall not be liable for any such advice or recommendation unless so confirmed.
(e) Proposals and quotations are valid for a period no longer than thirty (30) days from the date issued and may be withdrawn at any time. Klowdfone is not bound to honour proposals and quotations that have expired or been withdrawn. Any order confirmation or acceptance of a Klowdfone quotation must be made in writing to Klowdfone.
(f) Klowdfone may make and the Client shall accept partial provision or delivery of the Services and/or Products. Each provision or delivery shall be considered to be the subject of a separate Contract and failure or delay by Klowdfone to make one or more provisions or deliveries in accordance with the Contract or any claim by the Client in respect of any one or more provisions or deliveries shall not entitle the Client to treat that Contract as a whole, nor any other Contract, as repudiated.
(g) The Client is to supply promptly all materials and information required for Klowdfone to complete the provision of Services and/or Products in accordance with the agreed specification, whether initially at quotation stage, on accepting a Contract or subsequently. Such materials and information may include, but are not limited to, imagery, written-copy, logos and other printed materials. Where the Client’s failure to supply materials prevents progress on the Services for more than seven (7) days, Klowdfone has the right to invoice the Client and be paid for any part or parts of the Services already carried out.
- MINIMUM TERM
(a) The Minimum Term is twelve (12) months unless otherwise stated on your order form, and starts from the Service Start Date.
(b) Upon expiry of the Minimum Term, or any anniversary thereafter, this Contract will renew automatically for a further subsequent term of twelve (12) months unless terminated by either Party giving no less than ninety (90) days notice, such notice to expire before the end of the Minimum Term.
(c) Where the customer is a Small Business Customer, upon expiry of the Minimum Term or any anniversary thereafter, this Contract will only renew with the consent of the Customer. Klowdfone will be entitled to see the Customers’ consent no less than ninety (90) days before the end of the Minimum Term.
- PRICES AND PAYMENT
(a) Prices are those agreed in accordance with Order Confirmation (or, in the absence of such document, Condition 2(a)) and the and are exclusive of V.A.T. which shall be added at the rate and in the manner from time to time prescribed by law.
(b) Full payment of invoices will be due seven (7) Days after invoice date which, notwithstanding the date the Client receives a copy (physical or otherwise) of such invoice, shall be on completion of the provision or dispatch of the Services and/or Products.
(c) Interest on overdue accounts shall be payable at the rate of 2% per annum above Barclays Bank PLC’s base rate from time to time until payment in full is received by Klowdfone.
(d) If payment has not been received by the due date, Klowdfone has the right to suspend provision of Services and/or delivery of Products to the Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 14 (fourteen) days after the due date, Klowdfone has the right to cease provision of Services and/or delivery of Products to the Client. By removing the provision of Services and/or delivery of Products to the Client, Klowdfone does not remove the Client’s obligation to pay any outstanding monies owing.
(e) Klowdfone may vary the price of the Services and/or Products by notice in writing given to the Client at any time prior to completed provision of Services and/or delivery of Products to the Client.
(a) The Customer may cancel the Contract or any part of the Service within ten (10) working days from the date that the Customer agrees to proceed with the contract without additional charge, other than those charges actually incurred by under clause 10.6. Thereafter, if the Customer cancels the Contract or any part of the Service any time before Klowdfone provides the Service the Customer will pay Klowdfone the early termination charges calculated in accordance with clause (f).
(b) The Contract may be ended by either party upon giving the other one (1) calendar month’s prior written notice to the other.
(c) If the Customer or Klowdfone ends the Contract during the Minimum Period the Customer will pay Klowdfone the Early Termination Charges set out in clause (f). This clause will not apply if:
(i) the Customer ends the Contract during the Minimum Period because Microcare is in material breach of the Contract and fails to remedy such breach within thirty (30) days of receiving a request from the Customer to remedy the breach; (subject to the breach being capable of being remedied by Klowdfone);or
(ii) the Customer gives notice to end the Contract within ten (10) working days of Klowdfone notifying the Customer of an increase to the charges or changes to the Terms and Conditions in either case to the Customer’s significant detriment; or
(iii) a Customer as a Business Customer wishes to cancel the Contract at any time prior to the Service Start Date by giving written notice to Klowdfone or contacting Klowdfones’ customer services. Klowdfone will inform the Customer of the Service Start Date by issuing a Notification Letter to the Customer. For the avoidance of doubt, any costs incurred by the Customer prior to the cancellation of the Contract shall be charged to the Customer and become payable in accordance with clause 4.
(iv) Microcare ends the Contract of the Service during the Minimum Period for any reason other than because of a default of the Customer
(v) the Contract ends because clause 15.1 applies
(d) The Customer may end the Contract if:
(i) Klowdfone materially breaches the Contract and fails to remedy the breach within thirty (30) days of receiving a request from the Customer to remedy the breach(subject to the breach being capable of being remedied by Klowdfone); or
(ii) insolvency proceedings are brought against Klowdfone or Klowdfone makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of Klowdfones’ assets or Klowdfone goes into liquidation.
(e) If the Customer terminates this Contract prior to expiry of the Minimum Period, other than in respect of termination by the Customer pursuant to clauses (c) and (d), the Customer shall pay the early termination charges, calculated in accordance with clause (f).
(f) The early termination charges shall be, for each line that a Customer cancels:-
(i) the sum of the Line Rental charges payable by the Customer from the date of actual termination until the date of expiry of the Minimum Period; and
(ii) any actual Call Charges accrued up to and including the date of termination; and
(iii) 25% of the Call Charges that would otherwise have been payable by the Customer during the Minimum Period. Such sum to be calculated by taking the average monthly Call Charges incurred during the period from the Service Start Date to the date of termination multiplied by the number of months remaining in the Minimum Period. Such sums shall be paid by way of liquidated and ascertained damages by the Customer to Microcare and such sums are accepted by the parties as being a genuine pre-estimate of the net losses likely to be suffered by Microcare in such an event and.
(iv) an administration charge of £70.00 (seventy pounds) plus VAT.
(g) If the Customer terminates this Contract during the Subsequent Term the provisions of clauses (b) to (f) shall apply with the phrase “Subsequent Term” replacing the phrase “Minimum Period”.
(h) If the Contract ends, Klowdfone will refund any money owed to the Customer, after first deducting any money the Customer owes to Klowdfone under this Contract or any other agreement Klowdfone has with the Customer.
(i) Without prejudice to its other rights under this Contract if Customer terminates any Service prior to expiry of the Minimum Period, other than in respect of termination by the Customer pursuant to clauses (c) and (d), Klowdfone shall be entitled to charge the Customer an amount that would be reasonable in covering Klowdfone’s losses as a result of such a termination.
- INTELLECTUAL PROPERTY RIGHTS
(a) Proposals made and quotations offered by Klowdfone to potential Clients shall be treated as trade secrets and remain the property of Klowdfone. Such offers and proposals and the information contained within them must not be passed to third parties or publicly disseminated without prior written authorisation from Klowdfone unless strictly required by law. Information to which this Condition applies includes, but is not limited to, technical features, functionality and pricing information.
(b) All Intellectual Property Rights in or arising out of or in connection with the Products and/or Services are and shall be owned by Klowdfone.
(c) The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Products and/or Services, the Client’s use of any such Intellectual Property Rights is conditional on Klowdfone obtaining a written licence from the relevant licensor on such terms as will entitle Klowdfone to license such rights to the Client.
(a) Risk in the Products shall pass on delivery but title therein shall not pass until the purchase price has been paid in full.
(b) Until such payment, the Client shall insure the Products for their full replacement value and undertakes to mark or otherwise identify the Products as being the property of Klowdfone and hereby irrevocably authorises Klowdfone to enter upon the premises where the Products are kept from time to time for the purpose of repossessing the same in the event of termination of the Contract (whether as a result of non-payment of any sums due or otherwise).
(c) Klowdfone may maintain an action for the price of any or all of the Products, notwithstanding that title to the Products may not have passed to the Client.
(d) The Client’s rights to use software Products is limited to those rights Klowdfone is legally empowered to grant and the Client agrees to observe the conditions of any license agreements applicable to such software.
(e) It is the Client’s obligation to register Products manufactured by a third party with that manufacturer to obtain their manufacturer’s warranty cover. Klowdfone, at its sole discretion, may activate a warranty claim as agent and on behalf of the Client with the manufacturer but shall have no obligation to do so unless they have agreed in writing. Klowdfone accepts no other responsibility for loss, damage, failure or defect of any Product manufactured by a third party which is under warranty or which would have been under warranty but for the Client’s failure to register it in accordance with this Condition 7(e).
- DELIVERY AND ACCEPTANCE
(a) Klowdfone shall deliver the Products to the location set out in Order Confirmation or such other location as the parties may agree and delivery of the Products shall be completed on the Products’ arrival at that location.
(b) Any provision or delivery date agreed by Klowdfone shall be an estimate only and time shall not be of the essence for the purpose of any Contract based on these Conditions. Klowdfone shall not be liable for any delay in the performance of its obligations or any loss, damage, shortage, discrepancy or other consequences arising therefrom where such delay or non-performance is due to circumstances outside Klowdfones reasonable control (such circumstances including but not limited to, strikes, lock outs or other industrial disputes, failure of energy sources or transport network, acts of God, war, terrorism, riot, breakdown of plant or machinery, collapse of building structures, fires, floods, storms or extreme weather conditions, acts of omissions of the Client or default of suppliers or sub-contractors).
(c) The Client will be deemed to have accepted the Services provided and/or Products delivered by Klowdfone once provided or delivered, unless within seven (7) days of provision or delivery, the Client notifies Klowdfone in writing of specific deficiencies, shortages or discrepancies in the Services and/or Products provided or delivered. Upon expiry of the aforementioned period or upon remedy by Klowdfone of any valid and specifically notified deficiencies, shortages or discrepancies, Klowdfone shall be entitled to be paid for the Services and/or Products concerned.
(d) If the Client does not approve subsequent Services performed by Klowdfone to remedy any deficiencies, shortages or discrepancies in any Services, following such Services being notified by the Client to Klowdfone as unsatisfactory, and Klowdfone considers that the Client is unreasonable in his/her repeated rejection of those subsequent Services, the Contract will be deemed to have expired and Klowdfone can take any legal measures to recover both payment for the completed Services (plus any other sums outstanding) and reasonable expenses incurred in recovering payment.
- ON-SITE TECHNICAL SUPPORT
(a) Where agreed in writing as part of the Services, following the report by the Client of a Failure, Klowdfone shall make reasonable endeavours to ensure a suitably qualified technician arrives at the Client’s premises within the agreed response time (or, where no response time is agreed, within a reasonable period of time).
(b) Parts exchanged or replaced by Klowdfone become the express property of Klowdfone and include those items which have failed due to normal wear and tear but specifically excluding items such as Diskettes, Print Wheels, Laser Toners, Drums, Printer Ribbons or other items regarded as consumable by the manufacturer of that item.
(c) Klowdfone will charge for exchanged or replaced items and time costs incurred where Failure(s) result or repairs are required as a result of operator abnormal use or misuse, continued use of a Product following occurence of a Failure, lack of maintenance of a Product completely in accordance with Klowdfone’s instructions or advice, accidental or malicious damage however caused, damage caused by power surge, incorrect location of the equipment, unforeseen outside influences or the failure of a consumable item as defined in Condition 8(b).
(d) TFT and other computer screens are excluded from any technical support Service.
(e) The Client is solely responsible for stored Data and the maintenance of such Data. Klowdfone accepts no liability whatsoever for any consequential loss of such Data or any loss incurred arising directly or indirectly as a result of technical support Services provided.
(f) If, in the opinion of Klowdfone, the Product which is covered by a Contract for technical support Services is beyond economic repair, the technical support Services will be withdrawn from that Product and those Services will only resume following the purchase by the Client of an equivalent replacement Product from Klowdfone, and those Services will only resume in respect of the replacement Product and not the Product identified as beyond economic repair.
(g) Any modification of a Product subject to a Contract for technical support Services, without prior written approval from Klowdfone, will result in the withdrawal of those Services in respect of that Product, and any refund of amounts paid, or credit of amounts to be paid under such Contract in respect of that Product shall be entirely at the discretion of Klowdfone.
(h) The Contract for technical support Services in respect of any Product(s) is for the provision of those Services at a specific site, and Klowdfone has the right to make additional charges where extra costs have been incurred due to relocation.
(i) Each Contract for technical support Services is for an initial period of thirty six (36) months (the Minimum Term), and is automatically renewed for further period(s) of thirty six (36) months until terminated in accordance with Condition 5 or notice to terminate the Contract is given by either party, with such notice period to be no less than ninety (90) days before the end of the Minimum Term.
(j) Klowdfone reserves the right to assign or subcontract the technical support Service(s) provided to the Client under a Contract to another service provider of at least equal standing and competence as Klowdfone.
(k) Prices may be varied after the Initial Period by giving no less than one (1) months’ notice in writing to the Client.
- WARRANTIES AND LIABILITIES
(a) Klowdfone will use reasonable skill, care and diligence in the provision of the Services. Warranty in respect of Products is provided solely by the manufacturer pursuant to Condition 6(e) and liability for such Products which cannot be registered with the manufacturer in accordance with that Condition is only accepted where evidence is provided that reasonably endeavours have been taken by the Client to so register, and then is only accepted to the extent and for the period required by law.
(b) Nothing in these Conditions shall limit or exclude Klowdfone’s liability for:
(i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(ii) fraud or fraudulent misrepresentation; or
(iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 and section 12 of the Sale of Goods Act 1979 (title and quiet possession).
(c) Klowdfone takes no responsibility for services provided by third parties, whether part of the Services or otherwise. Where possible, Klowdfone endeavours to minimise downtime of the Client’s systems during performance of any Services.
(d) Under no circumstances will Klowdfone be responsible or liable for financial loss, loss of Data, or other loss or damage caused by any cessation of function (whether a Failure or not), use or misuse of Services and/or Products or any part(s) thereof. The Client should ensure that their Data is regularly backed up and that a contingency plan is in place to minimise possible losses as a result of Service and/or Product failures.
(e) In the event that Klowdfone is proved to be in breach of the provisions of a Contract, and after having been given a reasonable opportunity to correct any such breach fails to do so, then it shall be liable to the Client up to an amount not exceeding that part of the price of the Services and/or Products (excluding V.A.T.) actually paid by the Client to Klowdfone at the date of such claim by the Client.
(f) The liabilities expressly specified in these Conditions represent the only and total limit of liabilities accepted by Klowdfone howsoever arising unless such claims arise as a result of a circumstance listed in Condition 9(b).
(g) Notwithstanding the other provisions of this Condition 9 (except Condition 9(b)), Klowdfone shall have no liability whether under these Conditions or otherwise for claims for loss of use, loss of Data, loss of profit, loss of income, loss of reputation or loss of any contract or for any claims, costs, charges, damages and expenses of an analogous nature whether direct or indirect or for any claims (of whatever nature), made six (6) months or more after the occurrence of the breach on the part of Klowdfone.
(h) In these Conditions, the words ‘liable’ and ‘liability’ include liability arising in contract, tort (including but not limited to negligence) and by way of indemnity, misrepresentation and breach of duty.
(a) Except as set out in these Conditions, no variation of the Conditions or a Contract, including the introduction of any additional Conditions, shall be effective unless it is agreed in writing and signed by Klowdfone.
(b) The invalidity of any provision or obligation hereunder or the contravention thereby of any statute law or regulation of any competent government authority shall not relieve either party of its other obligations nor deprive either party of the advantages of any other provision of the Contract. If any provision or part-provision of the Conditions or a 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 Condition shall not affect the validity and enforceability of the rest of the Conditions or a Contract.
(c) The right, whether past, present or future and whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, of any third party to enforce the terms of these Conditions or a Contract directly is expressly and wholly excluded.
(d) The Client and Klowdfone each undertakes with the other to keep confidential any and all information relating to the other’s business which has been disclosed to it by the other, or which has become apparent from the course of interaction between those parties, before, during or after the term of any Contract.
(e) Nothing in the Conditions or any Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
(f) Any notice or other communication given to a party under or in connection with these Conditions or a Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier.
- GOVERNING LAW
The laws of England shall govern this Contract and the parties hereby submit to the jurisdiction of the English Courts.