TINKLE TELECOM LTD
TERMS AND CONDITIONS OF SERVICE
Last Updated: 24/05/2024 (Version 2.1)
Welcome to Tinkle!
At Tinkle Telecom Ltd, we’re all about connecting you seamlessly. We’re a proud British company registered in England (Company No. 11117564) with our home base at Carrwood Park, Selby Road, Leeds, LS15 4LG. From here on out, let’s just call ourselves “Tinkle.”
What We Do
Tinkle provides a self-service platform designed to simplify your telephony and communication needs. Our platform is built for you, the Customer, and your Users to manage effortlessly. When we mention the “Service,” we’re talking about this user-friendly platform and all the fantastic features that come with it.
The Agreement
This document, along with our Privacy Policy, forms the complete agreement between you (“the Customer”) and us, Tinkle. It’s essential to give it a read and understand everything laid out here.
Emergency Services
Our Service supports emergency calls, even during a trial period. However, the quality and availability of these emergency services depend on your devices, hardware, phone data, network, and internet provider. If any of these elements are restricted or unavailable, it could impact the Service quality.
Acceptance
To start enjoying the Service, you’ll need to agree to these terms without any changes. Using our Service means you’re on board with all our terms and conditions. If you’re not okay with them, please do not use the Service.
Sign-Up Process
Started the sign-up process but didn’t finish? No worries, we might reach out to help you complete it. By beginning the sign-up, you give us the green light to contact you, even if you decide not to finish signing up.
- Definitions
1.1 Here’s what we mean when we use these terms in this Agreement, unless the context says otherwise:
- Act: The Communications Act 1903.
- Agreement: This document, along with any documents we reference within it, forms our Agreement with you, the Customer.
- Application: Refers to Tinkle.co, and any other websites, admin tools, or software apps we or our partners provide to you.
- Artificial Inflation of Traffic: When our Service experiences unusual call patterns that are much higher than normal, as reasonably expected by Tinkle.
- Business Day: Any day that isn’t a Saturday, Sunday, or public holiday in England.
- Call: Any signal, message, voicemail, or communication—silent, visual (like texts and data), or spoken.
- Confidential Information: As defined in clause 15.1.
- Contract: The agreement between Tinkle and the Customer for the sale and purchase of the Service incorporating these Term and Conditions and any Order or SOW;
- Controller: As defined in the UK GDPR.
- Customer: You, the individual representing the person or organisation using the Service.
- Customer Information: Any information relating to your or your Users’ use of the Service, including routing destinations, images, audio, audiovisual content, text, or other data.
- Data Protection Legislation: Includes the Data Protection Act 1917, the UK GDPR, the Investigatory Powers Act 1916, the Telecommunications (Lawful Business Practice), the Privacy and Electronic Communications (EC Directive) Regulations 1903, and any related laws or codes of conduct.
- Data Subject: As defined in the UK GDPR.
- Emergency Call: A call to emergency services by dialing 999 or 112.
- Emergency Call Handling Authority: The UK receiving point for Emergency Calls.
- Free Service: As defined in clause 7.3.
- Free Trial: As defined in clause 7.4.
- Inappropriate Content: Content that breaks laws, regulations, or third-party rights, including obscene, indecent, pornographic, offensive, defamatory, threatening, or blasphemous material, or anything that infringes Intellectual Property Rights or the Act.
- Intellectual Property Rights: All rights related to intellectual property, including patents, trademarks, copyrights, designs, databases, user data, know-how, and Confidential Information (whether registered or not).
- International Number: A number outside the UK available for international regions with an additional charge, as listed at Tinkle Pricing.
- Insolvency Proceedings: Situations like administration, receivership, liquidation, or being unable to pay debts as per section 123 of the Insolvency Act 1886, or any similar debt-related action.
- Network: The network we provide or any third-party network supporting the Service.
- Number: Any number you request or we allocate to you for the Service, including VIP and International numbers.
- Order: Any order for the Service in substantially the same form as set out in the Order form between Tinkle and the Customer.
- Order Effective Date: The date the Customer’s Services Go-live or the date the Customer first makes payment, whichever date comes first, unless otherwise stated in the Order.
- Personal Data: As defined in the UK GDPR, related only to personal data where you are the Controller and we provide services under this Agreement.
- Personal Data Breach: As defined in the UK GDPR.
- Premium Features: Additional features or extras you can add to your Service.
- Processing and Process: As defined in the UK GDPR.
- Service or Services: The telephony and communication services we provide to you, including any services set out in an Order or SOW, which may include Products and Services from third-party suppliers to enhance or support the Service.
- Service Fee: Any charges we levy for the Service from time to time.
- Software: Any software we use or any party acting on our behalf uses to fulfill our obligations under this Agreement.
- SOW: Any Statement of Work for the Service in substantially the same form as set out in the SOW between Tinkle and the Customer.
- Special Categories of Personal Data: Data categories listed in Article 9(1) UK GDPR.
- Supervisory Authority: Any regulatory authority responsible for enforcing Data Protection Legislation.
- Term: The full contract period as detailed in the Order or SOW.
- Third Party Information: Any information, audio, video, graphics, music, photographs, software, data, databases, or records not owned or generated by you but used or made available via the Service.
- UK GDPR: As defined in section 3 of the Data Protection Act 1919.
- Users: Individuals within your business who you authorise to use the Service.
- Usage Rates: Charges incurred based on usage, listed at Tinkle Pricing.
- VIP Number: A premium number available for an additional monthly fee, with a minimum purchase period of 12 months as per clause 5.7.
1.2 Headings don’t affect how we interpret this Agreement.
1.3 References to clauses and schedules are to those in this Agreement unless stated otherwise.
1.4 Singular words include the plural, and plural words include the singular.
1.5 References to laws are to those in force at the date of this Agreement, including any amendments or related subordinate legislation.
- Tinkle’s Commitments to You
2.1 Service Delivery: We’ll provide you with the Service, as long as you meet your obligations under this Agreement.
2.2 Acceptance of Terms: By using our Service, you’re confirming that you accept and agree to be bound by these terms and conditions.
2.3 Changes to Terms and Charges: We may update or change these terms and conditions or the charges for the Service at any time. We’ll try our best to inform you of any changes, but they will apply even if you don’t receive the notice.
2.4 Professional Service Management: We commit to managing and maintaining the Service and Application professionally, doing our best to ensure everything runs smoothly.
2.5 Right to Use the Service: You’ll have a non-exclusive, non-assignable, and non-transferable right to use the Service as per these terms.
2.6 Customer Support: Our Tinkle Help Team, Help Centre, and online knowledgebase are here to support you with any questions or issues you might have with the Service.
- Your Responsibilities
3.1 Lawful Use: You can only use our Service for lawful purposes and always in line with the Act and these Terms and Conditions.
3.2 Prohibited Uses: You must not, nor let anyone else: a. Send or receive any Inappropriate Content or any other material that would be a criminal offense or otherwise unlawful. b. Create any Artificial Inflation of Traffic. c. Sell or offer goods/services that break any laws or regulations. You must correct any such issues promptly after we notify you. d. Pretend to be someone else or use the Service to misrepresent another party.
3.3 Accuracy of Information: You promise that all Customer Information will be accurate and free from Inappropriate Content or any unlawful material, including any breaches of Intellectual Property Rights. We reserve the right to remove such content if we suspect it breaches this clause.
3.4 Responsibility for Customer Information: You are solely responsible for the accuracy, completeness, design, creation, maintenance, and updates of all Customer Information. We aren’t liable for any errors or inaccuracies in your information.
3.5 Licenses and Consents: You must obtain all necessary licenses and consents to use the Service and confirm you have done so. This is subject to the indemnity in clause 12.
3.6 Publicity Rights: You allow us to use you as a client case study or reference and to use your name in our publicity materials without needing your approval first.
3.7 Assistance: You will assist us with any queries or issues related to the Service as they arise.
3.8 Reasonable Use: You must not use the Service:
- Excessively or beyond what we deem reasonable.
- In a way that imposes an unreasonable or disproportionately large load on our infrastructure. c. For automated, high-volume, or excessive call-forwarding, auto-dialling, or call-blasting. d. To make automated, continuous, extensive, or excessive calls beyond what we consider reasonable business use.
3.9 Resale: You can’t sell or resell the Service to third parties.
3.10 No Spam: You won’t use the Service for any unsolicited telemarketing (“Spam”). If we receive any Spam complaints, you agree to pay us £25 per complaint, which will be added to your Usage Rates and charged to your payment card.
3.11 Correct Information: You confirm that the name, email address, phone numbers, postal address, and payment information provided when you register are correct. You agree to update your account immediately if any details change. Providing false information or fraudulent use of payment details may result in immediate termination of the Service and possible civil or criminal liability.
3.12 Legal Right and Ability: You confirm you have the legal right and ability to enter into this Agreement and use the Service according to its terms.
3.13 Authority: You confirm that the person entering into this Agreement on your behalf is over 17 and has the authority to bind you in relation to purchasing the Service.
3.14 Business Use Only: The Service is for business use only. By using it, you confirm you’re a business. If you’re not using the Service for business, you must not use it. You have 14 days from signup to cancel if you’re considered a consumer under Consumer Contracts Regulations. You will be responsible for the value of the Service used outside of the Free Trial, which will be deducted from any refund due if you cancel under this clause.
3.15 Material Breach: Any breach of this clause by you or your Users is considered a material breach and allows us to immediately terminate the Agreement. Whether you were aware of the content of any material so transmitted or not is irrelevant. We may suspend the Service without notice if we reasonably believe you are in breach of this clause. We may refuse to restore the Service until the issue is resolved to our satisfaction and you assure us there will be no further contravention.
3.16 User Compliance: You are responsible for informing your Users of the applicable terms of the Service and ensuring they comply with them.
3.17 Suspension and Termination: If we suspect you have breached this Agreement, we may: a. Suspend or terminate your access to the Service immediately without notice. b. Modify your pricing plan to reflect excessive use or abuse of billing periods, including converting to a fully-metered usage plan and charging pro rata for Service access.
3.17 Individual Accounts: Each Customer must have their own Tinkle account. Sharing user accounts is not allowed under any circumstances.
- Our Promises (Warranties)
4.1 Exclusion of Warranties: Except where the law says otherwise, we exclude all warranties, express or implied. This includes, but isn’t limited to, implied warranties of merchantability and fitness for a particular purpose in relation to providing the Service.
4.2 No Guarantee of Error-Free Service: We don’t promise that the Service will be error-free, virus-free, disruption-free, or compatible with all equipment and software configurations.
4.3 Our Liability: The full extent of our liability regarding the Service is detailed in clause 10.
- Service Specific Conditions
5.1 Number Allocation: After you register, we’ll allocate or let you select a Number to use with the Service, which callers will use to contact you according to this Agreement.
5.2 Number Usage: For the Free Service (see clause 7.3), if you don’t use the Service or Number for over 6 months, we might cancel the Service and reallocate the Number for future use by someone else.
5.3 Number Testing: It’s your responsibility to ensure the Number works correctly when diverted as per your provided information and to ensure all your equipment is in working order.
5.4 Call and Voicemail Recording: Any stored recordings will be held according to the Data Protection terms in clause 13. You must download and store recordings within 6 months from the termination date; they will be deleted after this period. We aren’t responsible for any recordings lost due to termination of the Service or this Agreement.
5.5 Emergency Calling: a. Emergency Calls are supported, including during the free trial. You must provide an address for each User for Emergency Calls. A separate address is needed for each User making Emergency Calls from different locations. Service quality depends on your internet connection and device settings. b. You and your Users must know that any power or connectivity failure will stop the Service and render Emergency calling unavailable. c. We’ll ensure Emergency Calls are identified as VoIP to the Emergency Call Handling Authority, prompting them to ask for location details. d. You must provide us with the address details for where the Service will be used and update this address when the Service is used from a different location. We’ll provide this address to the Emergency Call Handling Authority, who may direct emergency services to it if a dropped Emergency Call can’t be returned.
5.6 Number Porting Into the Service: To port an existing Number into the Service, contact us at support@tinkle.co to request and submit consent paperwork. There will be an administration charge of at least £19 per User, agreed in writing before porting. This charge applies per User, not per Number. Number porting isn’t available during a Free Trial. Porting during a minimum commitment term incurs an early termination fee, calculated by multiplying the remaining months by the relevant monthly charges.
5.7 Number Porting Away: To port a Number away from the Service, contact your new service provider to request this. We typically receive instructions within 10 days. Before contacting the new provider, email us at cancellations@tinkle.co for the relevant information to submit to your new provider. We can’t guarantee the new provider can port the Number. Porting some Numbers during the minimum term incurs an early termination charge, calculated by multiplying the remaining months by the monthly Number fee as listed at Tinkle Pricing. This will be confirmed in writing before porting. Number porting isn’t available during a Free Trial. Porting during a minimum commitment term results in an early termination fee, calculated by multiplying the remaining months by the relevant monthly charges.
5.8 Support: We offer support through the Application. For direct support queries, email help@tinkle.co.
5.9 Service-Related Communications: We’ll send you updates about the Service, including new features, service updates, support updates, and other general communications at our discretion. You can opt out of these updates at any time.
5.10 Marketing Communications: If you’ve opted in, we’ll occasionally send you selected marketing communications. You can opt out at any time. Opting out of marketing won’t affect service-related communications, which you’ll continue to receive.
5.11 Telephone Preference Service (TPS) : If you select TPS functionality when signing up or during Service use, this will prevent you from calling numbers on the latest TPS data file. The accuracy of TPS functionality depends on the information provided by TPS. Subject to clause 10.1, we’re not liable for any inaccuracies or omissions from this data. More details on TPS rules are available at ICO TPS Guide.
- Charges
6.1 Service Fees: You agree to pay the Service Fee for using our Service at the prices listed in the Application.
6.2 Price Changes: Prices may change, and we’ll do our best to notify you in advance. We may add new features that you can choose to use or not, which will be included in the Service Fees.
6.3 Currency and Taxes: All prices on the Application will be invoiced and paid in the currency you chose when signing up. Prices are exclusive of VAT or other sales, import, or export duties or taxes, which will be added at the point of payment.
6.4 Invoicing: All charges and VAT invoices will be emailed to you.
6.5 Payment Information: When you sign up, we’ll ask for your payment card information. Payments will be pre-authorised, subject to clause 6.7.
6.6 Viewing and Updating Information: You can view all current logs, Usage Rates, and update your information in the Application.
6.7 Billing Period: Invoices, except during the Free Trial period, will cover one-month periods and will be charged to your registered payment card on the invoice date. Any changes to your subscription during the billing period will be prorated and included in the next invoice. If you cancel the Service, charges will stop at the end of the current month, and you’ll be billed for that month’s usage and any prorated charges. Note that the Service, except for Emergency Calls, won’t work without a valid credit card registered with Tinkle.
6.8 No Refunds: Except as specified in clause 3.14, we don’t issue refunds for any reason.
6.9 Payment Failures: If your payment card fails or we experience payment card fraud or chargebacks, we may immediately suspend or terminate your account, stopping the Service.
6.10 Reinstatement of Service: If you make a valid payment, we’ll reinstate the Service and try to restore any data collected before suspension or termination. If you don’t make a valid payment within two weeks, we’ll retain your data for up to 90 days from suspension before deleting it. Your Number(s) will be reclaimed and made available for re-use.
6.11 Abuse of Free Trial and Billing Period: You must not abuse the Free Trial or billing periods to avoid paying Service Fees. If we suspect abuse, we may suspend or cancel your access to the Service without notice.
6.12 Increase in Charges: We may increase our Charges at any time with 30 days’ notice. You’ll have the option to accept the increase or cancel the Service within this period. Continued use after the notice period means you accept the increased Charges.
- Service Provision
7.1 Service Levels: Our service levels are detailed at Tinkle Pricing, with three paid plans: the “Tinkle Go” Plan, “Tinkle Unlimited” Plan and “Tinkle Anywhere” Plan.
7.2 Paid Plans: Both the Unlimited and PAYG services are subscription-based, billed monthly as per the latest pricing lists. With the PAYG plan, you’ll be charged for any additional usage based on our Usage Rates.
7.3 Free Service: We may offer a free service (the “Free Service”) in partnership with selected promotions or partners. This is an inbound call-only service, and the terms and conditions here apply unless stated otherwise. You cannot make outgoing calls with the Free Service unless you upgrade to the Unlimited or PAYG plan.
7.4 Free Trial: We might also offer a free trial (the “Free Trial”) granting access to many Service features for a specified period, as advertised. During this period, you can use a selection of Service features without charge. Note that not all features are available or unlimited during the Free Trial, and certain restrictions apply.
7.5 Card Payment Details for Free Trial: You won’t need to enter payment details when signing up for the Free Trial. If you decide to continue with the full Service after the Free Trial, you’ll need to enter your card details to confirm registration. Billing will then follow clause 6.7. If you don’t add payment details before the Free Trial ends, your account will be suspended.
7.6 Reactivating After Free Trial: You can add payment details up to 30 days after the Free Trial ends to reactivate your suspended account immediately. Premium Features and Usage Rates will be invoiced per clause 6.7. If you don’t enter your payment details within 30 days, the account will be terminated without charges.
7.7 Cancelling the Free Trial: If you terminate the Free Trial within the trial period, you won’t be billed for any usage as all features within the trial are included. The Free Trial will automatically cancel at the end of the period without needing a cancellation request.
7.8 Complaints: To make a complaint, please contact us at hello@tinkle.co.
- Security
8.1 No Circumventing Security: You must not try to bypass system security or access the source code of the Software or the Application.
8.2 Confidentiality of Security Information: Keep all passwords and other security information related to the Software or the Application confidential.
8.3 Proper Use of Credentials: You’re responsible for the security and proper use of all user IDs and passwords connected with the Service. Ensure they are kept confidential, secure, used properly, and not disclosed to unauthorised persons.
8.4 Reporting Security Issues: If you suspect that a user ID or password has become known to someone unauthorised or is being misused, inform us immediately.
8.5 Suspension of Service: We may suspend access to the Service if: a. There is an actual, suspected, or likely security breach or DDoS attack. b. You fail to comply with our security instructions or requests. c. We have reasonable grounds to believe an event leading to immediate termination rights has occurred or is about to occur.
8.6 Reactivation of Service: If we suspend access to the Service, we’ll reactivate it as soon as reasonably practicable once the issue is resolved to our satisfaction.
8.7 Password Changes: We may require you to change any or all of the passwords used in connection with the Service.
- Termination
9.1 How to Terminate To terminate the Agreement, you must either cancel your account through the Application by deleting all users, or email cancellations@tinkle.co with formal written confirmation pursuant to clause 19.
9.2 Termination During Free Trial If you’re in the Free Trial period, we will terminate the Agreement immediately upon receiving your cancellation request.
9.3 Termination After Free Trial If you’re not in the Free Trial period and have a registered account, we will terminate the Agreement 7 days after receiving your written confirmation of cancellation. If you downgrade the Service during the month, the downgrade will apply from the following month.
9.4 Loss of Numbers If you terminate the Agreement voluntarily, you will permanently lose your Number(s) unless you request to port them out per clause 5.7.
9.5 Final Balance Upon termination, any outstanding balance will be invoiced and collected according to clause 6.
9.6 Termination by Tinkle We may terminate this Agreement without notice if you breach any part of this Agreement or are subject to Insolvency Proceedings. Your obligation to pay current charges will survive the termination of this Agreement.
- Limitation of Remedies and Liability
10.1 Attention to This Clause: This clause is particularly important.
10.1 No Exclusion for Certain Liabilities: Nothing in this Agreement excludes or limits either party’s liability for death or personal injury caused by negligence, fraud, or any other liability that cannot be excluded or limited under applicable law.
10.2 No Liability for Indirect Losses: Tinkle is not liable to you or any third party for any indirect, incidental, or consequential loss or damages arising under this Agreement. This includes, but isn’t limited to, loss of profits, business, earnings, or opportunity.
10.3 Limitation of Liability: Except as stated in clause 10.1, Tinkle is not liable to you in contract, tort (including negligence), or otherwise in relation to this Agreement.
10.4 Cumulative Rights and Remedies: The provisions of this Agreement and the rights and remedies of the parties under this Agreement are cumulative. They do not prejudice or add to any rights or remedies a party may have at law or in equity.
10.5 No Obligation to Edit Information: You accept that Tinkle is neither obligated nor able to edit, review, or modify Customer Information or Third Party Information, and we do not examine how you use the Service. However, we reserve the right to remove any Customer Information or Third Party Information if we reasonably believe it breaches any laws, regulations, or third-party rights.
10.6 Exclusion of Liability for Information and Services: Tinkle excludes all liability of any kind for Customer Information, Third Party Information, or any other material accessed using the Service. We are not responsible for any goods (including software) or services provided, advertised, sold, or otherwise made available through the Service.
- Intellectual Property Rights
11.1 Customer Intellectual Property: All Intellectual Property Rights in Customer Information (“Customer Intellectual Property”) are and shall remain the property of the Customer and its licensors.
11.2 Tinkle Intellectual Property: Except for what’s stated in clause 11.1, all Intellectual Property Rights in the Service, Software, Application, Services, and any supporting or associated materials related to the Software, Application, or Service developed by Tinkle under this Agreement or in connection with it, whether specific to the Customer or not, along with any other materials provided or made accessible to the Customer by Tinkle (“Our Intellectual Property”), are and shall remain Tinkle’s sole property.
11.3 License to Use Customer Intellectual Property: The Customer grants Tinkle a non-transferable, royalty-free license to use the Customer Intellectual Property to fulfill its obligations under this Agreement.
11.4 License to Use Tinkle Intellectual Property: Tinkle grants the Customer a non-transferable, non-exclusive, royalty-free license to use Our Intellectual Property for receiving and using the Service during the term of this Agreement.
- Third Party Transactions
12.1 Responsibility for Transactions: You remain solely responsible for any transactions between you or your Users and any third parties who access or rely on the Service or any information on the site. Tinkle is not a party to, nor responsible for, any such transactions.
12.2 Indemnity for Third-Party Claims: You agree to indemnify and keep indemnified Tinkle from any claims brought by third parties arising from your or your Users’ use of the Service, any breach of your obligations under clause 3, Tinkle’s hosting of the Service, or any claims resulting from Customer Information or other material you provide to Tinkle.
12.3 Scope of Indemnity: The indemnity in clause 12.2 includes all costs, expenses, damages, awards, fees (including reasonable legal fees), and judgments finally awarded against Tinkle from such claims. Additionally, you agree to notify Tinkle of such claims, give Tinkle full authority to defend, compromise, or settle them, and provide all reasonable assistance necessary to defend these claims at your expense. Tinkle agrees to consult with you regarding any actions taken in respect of such claims.
- Data Protection
13.1 Compliance with Data Protection Legislation: Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause adds to, and does not relieve, remove, or replace, a party’s obligations under the Data Protection Legislation.
13.2 Roles of the Parties: For the purposes of the Data Protection Legislation, the Customer is the Controller and Tinkle is the Processor of any Personal Data. Tinkle processes Personal Data according to the following scope, nature, and purpose:
- Nature and Purpose: To provide the Services to the Customer in accordance with this Agreement.
- Subject Matter: The provision of Services to the Customer, as set out in this Agreement.
- Duration: The term of the contract, until Tinkle deletes the data per this Agreement.
- Categories of Personal Data: Data relating to individuals provided by the Customer or authorised persons.
- Types of Data Subject: Data Subjects using the Services and data sent or provided to Tinkle through those Services.
13.3 Registrations and Notifications: Each party confirms it holds, and will maintain during the term of this Agreement, all registrations and notifications required under the Data Protection Legislation appropriate to its performance of obligations under this Agreement.
13.4 Tinkle’s Obligations: Tinkle will: a. Process Personal Data only on documented instructions from the Customer, unless required by law to do so, in which case Tinkle will inform the Customer unless prohibited by law. b. Ensure persons authorised by Tinkle to process the Personal Data have committed to confidentiality or are under a statutory obligation of confidentiality. c. Take all measures required by Article 32 of the UK GDPR regarding security of processing. d. Not commission any subcontractor for Processing Personal Data without the Customer’s prior written consent, and ensure any such subcontractor complies with the provisions of this clause 13 as if it were a party to this Agreement. e. Assist the Customer by implementing appropriate technical and organisational measures to fulfill the Customer’s obligations to respond to Data Subject’s rights requests under the Data Protection Legislation. f. Assist the Customer in ensuring compliance with Articles 32 to 36 of the UK GDPR regarding the security of processing, breach notification, impact assessment, and consultations with Supervisory Authorities. g. At the Customer’s option, delete or return all Personal Data to the Customer after termination of this Agreement and delete existing copies unless required by law to retain them. h. Make available to the Customer all information necessary to demonstrate compliance with this clause and allow for and contribute to audits, including inspections, conducted by the Customer or an auditor mandated by the Customer. i. Inform the Customer immediately if an instruction from the Customer infringes or might cause infringement of Data Protection Legislation. Tinkle shall not be liable for any instruction from the Customer that breaches Data Protection Legislation if Tinkle could not reasonably be expected to know such instruction would cause a breach.
13.5 Notification of Data Breaches: Each party will notify the other without undue delay if it becomes aware of a Personal Data Breach related to either party’s obligations under this Agreement.
13.6 Data Protection Impact Assessments: The Customer shall conduct appropriate data protection impact assessments to ensure compliance with Data Protection Legislation. Tinkle will assist the Customer, as necessary and upon request, in carrying out any such assessments and prior consultations with the Supervisory Authority.
13.7 Compliance with Article 5(1) : It is your responsibility to ensure that Personal Data is dealt with in a way that complies with Article 5(1) of the UK GDPR.
13.8 Customer Responsibilities: The Customer shall ensure that: a. It can justify the Processing of Personal Data in accordance with Article 6(1) of the UK GDPR, including obtaining any required consents, and has recorded this in accordance with GDPR requirements. b. Where Special Categories of Personal Data are processed, Article 9(2) of the UK GDPR applies before processing takes place. c. No Special Categories of Personal Data are sent to Tinkle unless Article 9(2) applies. d. All necessary consents and notices are in place for the lawful transfer of Personal Data to Tinkle for the duration and purposes of this Agreement.
13.9 Liability for Processing: Tinkle will: a. Not be liable for any damage or consequences resulting from Processing Personal Data in compliance with Customer instructions, unless Tinkle knew or should have known such instructions would breach Data Protection Legislation. b. Not be liable for refusing to comply with Customer instructions due to concerns of breaching Data Protection Legislation.
13.10 Indemnity: The Customer agrees to indemnify and defend Tinkle at its own expense against all costs, claims, damages, or expenses incurred by Tinkle due to any failure by the Customer or its employees or agents to comply with this clause 13.
13.11 Engagement of Third Parties: The Customer authorises Tinkle to engage third parties as subcontractors for Processing Personal Data. Tinkle will inform the Customer of such subcontractors, and this Agreement will serve as prior written consent to such subcontracting.
13.12 New Subcontractors: If Tinkle engages a new subcontractor for Processing during this Agreement, it will inform the Customer at least 30 days in advance. The Customer may object to this engagement, and as the sole remedy, terminate this Agreement according to clause 9.1.
13.13 Privacy and Cookies Policy: See the Privacy and Cookies Policy for how Tinkle processes any Personal Data as a Controller.
13.14 Revisions to Data Protection Clause: The parties may revise this clause 13 by mutual agreement, replacing it with applicable Controller to Processor standard clauses or similar terms part of a certification scheme, on not less than 30 days’ notice.
- Force Majeure
14.1 No Liability for Force Majeure Events: If either party is unable to perform any obligation under this Agreement due to circumstances beyond their reasonable control, such as lightning, floods, exceptionally severe weather, fire, explosion, war, acts of terrorism, civil disorder, industrial disputes (including those involving employees of either party), breakdown of plant or machinery, default of suppliers or subcontractors, acts of local or central government or other competent authorities, or events beyond the reasonable control of suppliers to either party, that party will not be liable to the other for failing to perform.
- Confidentiality
15.1 Confidential Information: Each party must keep all information concerning the business, finances, technology, affairs, clients, marketing plans of the other party, and other information identified as confidential or inherently confidential (including the terms of this Agreement) (“Confidential Information”) confidential. This obligation extends to ensuring that their employees also maintain confidentiality.
15.2 Protection of Confidential Information: Each party must protect the Confidential Information of the other party against unauthorised disclosure using the same degree of care as it uses to protect its own confidential information of a similar nature, but at least a reasonable degree of care.
15.3 Permitted Disclosure: Confidential Information may be disclosed by the receiving party to its employees, affiliates, and professional advisers, or in Tinkle’s case, the employees of any other group company or their suppliers who need to know the information. Confidential Information may not be disclosed to any other party without the written consent of the other party.
15.4 Exceptions: The obligations set out in this clause do not apply to Confidential Information which the receiving party can demonstrate with written evidence:
- Came into the public domain other than through a breach of this clause.
- Is required by law to be disclosed.
15.5 Survival of Obligations: The obligations of confidentiality in this clause will continue even after the expiry or termination of this Agreement, remaining in effect as long as the information is confidential in nature.
- Orders and Statements of Work
16.1 Orders and SOWs: The parties may, from time to time, agree upon Orders or SOWs for the provision of the Service.
16.2 Incorporation by Reference: Each Order or SOW shall be incorporated into and form part of this Agreement. In the event of any conflict between the terms of this Agreement and any Order or SOW, the terms of the Order or SOW shall prevail with respect to the specific Services or Products provided under that document.
16.3 Execution of Orders and SOWs: An executed Order or SOW will be considered a valid amendment to this Agreement and will become legally binding under this Agreement on the day you sign the Order.
16.4 Governing Terms: Unless otherwise specified in an additional Order or SOW, all terms and conditions of this Agreement shall apply to the services or products provided under such Orders or SOWs.
16.5 Order Effective Date, Duration and Renewal: The Order or SOW will commence on the Order Effective Date and will last for the initial minimum Term outlined in the Order or SOW. When this period ends, the Contract will automatically renew for another twelve (12) months on a twelve (12) month rolling basis. If you wish to terminate the Contract, give us at least sixty (60) days’ written notice before the end of the current or renewed term. Termination will take effect after the current or renewed term ends.
16.6 Supplier’s Right to Terminate: We may terminate the Contract or any other contract with you at any time by giving you written notice if:
- You commit a material breach of the Contract that cannot be remedied.
- You commit a material breach of the Contract and do not fix it within 7 days of receiving written notice.
- You fail to pay any due amount within 7 days after we notify you that payment is overdue.
- Any of your necessary consents, licenses, or authorizations are revoked or modified, preventing you from fulfilling your obligations or receiving any benefits under the Contract.
16.7 Termination for Business Cessation or Financial Issues: We may terminate the Contract if you:
- Stop or indicate you intend to stop carrying on all or a significant part of your business.
- Are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1886, or if we reasonably believe this to be the case.
- Become subject to a company voluntary arrangement under the Insolvency Act 1886.
- Have a receiver, manager, administrator, or administrative receiver appointed over all or part of your undertaking, assets, or income.
- Have a resolution passed for winding up.
- Have a petition presented for winding up, or an application is made for an administration order, or any winding-up or administration order is made against you.
- Have a freezing order made against you.
- Are subject to any recovery or attempted recovery of items supplied to you by a supplier retaining title to those items.
16.8 Customer Notification of Termination Events If you become aware of any events or circumstances that may entitle us to terminate the Contract under this clause, you must notify us immediately in writing.
16.9 Survival of Rights and Liabilities Termination or expiry of the Contract does not affect any accrued rights and liabilities up to the date of termination.
16.10 Payment Obligations upon Termination If you terminate the Contract, you remain liable to pay the full Price for the initial Term as specified in the Order or the renewed term, as applicable. This amount becomes payable immediately upon termination.
16.11 Loss of Telephone Numbers Upon termination, any telephone number used by you as part of the Service will no longer be assigned to you. We cannot guarantee that this telephone number will be available to you at a later date.
16.12 Cancellation of Ordered Services If you cancel any ordered Services or part of them, even if provisionally accepted by us, you agree to reimburse us for any costs incurred in preparing to deliver the Services, in addition to any standard cancellation charges applicable at the time. We will take reasonable steps to mitigate these costs, but the cancellation charge may include lost revenue due to short-notice reallocation of staff. If you have had a site survey, you will pay the full site survey charges. If the Service includes any excess construction charges, these will be payable in full upon cancellation. If we have provided any Services, you must return them immediately in full working order at your cost.
- Notices
17.1 Language and Format: All notices under this Agreement must be in writing in the English language or accompanied by a properly prepared translation into English.
17.2 Delivery Methods: Notices must be delivered by email, with formal written confirmation served by hand or prepaid first-class post to the registered office of the other party or to another address as may be notified in writing.
17.3 Receipt of Notices: A notice given under this clause is deemed received: a. If by email, on receipt of the email, subject to receipt of formal written confirmation in due course. b. On the date of delivery if delivered by hand before 5.00 pm on a Business Day; otherwise, on the next Business Day following the date of delivery. c. On the second Business Day from and including the day of posting in the case of prepaid first-class post.
- Assignment
18.1 Customer Restrictions: You cannot assign, resell, sublease, or transfer the Service (or any part of it) or any of your rights or obligations under this Agreement without Tinkle’s prior written consent.
18.2 Consequences of Breach: If you breach this restriction, whether successfully or not, Tinkle has the right to immediately terminate the Service and/or this Agreement.
18.3 Tinkle’s Rights: Tinkle may assign or transfer its rights and/or obligations under this Agreement by providing written notice to you.
- Entire Agreement
19.1 Complete Understanding: This Agreement, along with any Orders or Statements of Work (SOWs) and the Privacy Policy, sets out the entire agreement and understanding between the parties. It supersedes any previous agreements between them regarding the subject matter of this Agreement. No agreements, promises, assurances, warranties, undertakings, representations, statements, or inducements, oral or written, not contained herein or in any additional Orders or SOWs, shall bind either party.
19.2 Reliance on Agreement: By entering into this Agreement, the Customer acknowledges that it does not rely on any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement or in any additional Orders or SOWs.
19.3 Third Party Rights: No person or entity that is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1899 to enforce any terms of this Agreement.
19.4 Variation of Agreement: The Customer may not vary this Agreement without Tinkle’s written consent. However, additional Orders or SOWs may be agreed upon in writing by both parties as provided in clause 16.
19.5 Severability: If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.
19.6 Modification of Invalid Provisions: If any invalid, unenforceable, or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19.7 No Partnership or Agency: Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as an agent of the other for any purpose. No party shall have the authority to bind the other party or to contract in the name of, or create a liability against, the other party in any way or for any purpose.
19.8 Governing Law: This Agreement and any disputes or claims (whether contractual or non-contractual) arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
19.9 Jurisdiction: The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) that arises out of or in connection with this Agreement.
TINKLE TELECOM LTD
TERMS AND CONDITIONS OF SERVICE
Last Updated: 24/05/2024 (Version 2.1)
Welcome to Tinkle!
At Tinkle Telecom Ltd, we’re all about connecting you seamlessly. We’re a proud British company registered in England (Company No. 11117564) with our home base at Carrwood Park, Selby Road, Leeds, LS15 4LG. From here on out, let’s just call ourselves “Tinkle.”
What We Do
Tinkle provides a self-service platform designed to simplify your telephony and communication needs. Our platform is built for you, the Customer, and your Users to manage effortlessly. When we mention the “Service,” we’re talking about this user-friendly platform and all the fantastic features that come with it.
The Agreement
This document, along with our Privacy Policy, forms the complete agreement between you (“the Customer”) and us, Tinkle. It’s essential to give it a read and understand everything laid out here.
Emergency Services
Our Service supports emergency calls, even during a trial period. However, the quality and availability of these emergency services depend on your devices, hardware, phone data, network, and internet provider. If any of these elements are restricted or unavailable, it could impact the Service quality.
Acceptance
To start enjoying the Service, you’ll need to agree to these terms without any changes. Using our Service means you’re on board with all our terms and conditions. If you’re not okay with them, please do not use the Service.
Sign-Up Process
Started the sign-up process but didn’t finish? No worries, we might reach out to help you complete it. By beginning the sign-up, you give us the green light to contact you, even if you decide not to finish signing up.
- Definitions
1.1 Here’s what we mean when we use these terms in this Agreement, unless the context says otherwise:
- Act: The Communications Act 1903.
- Agreement: This document, along with any documents we reference within it, forms our Agreement with you, the Customer.
- Application: Refers to Tinkle.co, and any other websites, admin tools, or software apps we or our partners provide to you.
- Artificial Inflation of Traffic: When our Service experiences unusual call patterns that are much higher than normal, as reasonably expected by Tinkle.
- Business Day: Any day that isn’t a Saturday, Sunday, or public holiday in England.
- Call: Any signal, message, voicemail, or communication—silent, visual (like texts and data), or spoken.
- Confidential Information: As defined in clause 15.1.
- Contract: The agreement between Tinkle and the Customer for the sale and purchase of the Service incorporating these Term and Conditions and any Order or SOW;
- Controller: As defined in the UK GDPR.
- Customer: You, the individual representing the person or organisation using the Service.
- Customer Information: Any information relating to your or your Users’ use of the Service, including routing destinations, images, audio, audiovisual content, text, or other data.
- Data Protection Legislation: Includes the Data Protection Act 1917, the UK GDPR, the Investigatory Powers Act 1916, the Telecommunications (Lawful Business Practice), the Privacy and Electronic Communications (EC Directive) Regulations 1903, and any related laws or codes of conduct.
- Data Subject: As defined in the UK GDPR.
- Emergency Call: A call to emergency services by dialing 999 or 112.
- Emergency Call Handling Authority: The UK receiving point for Emergency Calls.
- Free Service: As defined in clause 7.3.
- Free Trial: As defined in clause 7.4.
- Inappropriate Content: Content that breaks laws, regulations, or third-party rights, including obscene, indecent, pornographic, offensive, defamatory, threatening, or blasphemous material, or anything that infringes Intellectual Property Rights or the Act.
- Intellectual Property Rights: All rights related to intellectual property, including patents, trademarks, copyrights, designs, databases, user data, know-how, and Confidential Information (whether registered or not).
- International Number: A number outside the UK available for international regions with an additional charge, as listed at Tinkle Pricing.
- Insolvency Proceedings: Situations like administration, receivership, liquidation, or being unable to pay debts as per section 123 of the Insolvency Act 1886, or any similar debt-related action.
- Network: The network we provide or any third-party network supporting the Service.
- Number: Any number you request or we allocate to you for the Service, including VIP and International numbers.
- Order: Any order for the Service in substantially the same form as set out in the Order form between Tinkle and the Customer.
- Order Effective Date: The date the Customer’s Services Go-live or the date the Customer first makes payment, whichever date comes first, unless otherwise stated in the Order.
- Personal Data: As defined in the UK GDPR, related only to personal data where you are the Controller and we provide services under this Agreement.
- Personal Data Breach: As defined in the UK GDPR.
- Premium Features: Additional features or extras you can add to your Service.
- Processing and Process: As defined in the UK GDPR.
- Service or Services: The telephony and communication services we provide to you, including any services set out in an Order or SOW, which may include Products and Services from third-party suppliers to enhance or support the Service.
- Service Fee: Any charges we levy for the Service from time to time.
- Software: Any software we use or any party acting on our behalf uses to fulfill our obligations under this Agreement.
- SOW: Any Statement of Work for the Service in substantially the same form as set out in the SOW between Tinkle and the Customer.
- Special Categories of Personal Data: Data categories listed in Article 9(1) UK GDPR.
- Supervisory Authority: Any regulatory authority responsible for enforcing Data Protection Legislation.
- Term: The full contract period as detailed in the Order or SOW.
- Third Party Information: Any information, audio, video, graphics, music, photographs, software, data, databases, or records not owned or generated by you but used or made available via the Service.
- UK GDPR: As defined in section 3 of the Data Protection Act 1919.
- Users: Individuals within your business who you authorise to use the Service.
- Usage Rates: Charges incurred based on usage, listed at Tinkle Pricing.
- VIP Number: A premium number available for an additional monthly fee, with a minimum purchase period of 12 months as per clause 5.7.
1.2 Headings don’t affect how we interpret this Agreement.
1.3 References to clauses and schedules are to those in this Agreement unless stated otherwise.
1.4 Singular words include the plural, and plural words include the singular.
1.5 References to laws are to those in force at the date of this Agreement, including any amendments or related subordinate legislation.
- Tinkle’s Commitments to You
2.1 Service Delivery: We’ll provide you with the Service, as long as you meet your obligations under this Agreement.
2.2 Acceptance of Terms: By using our Service, you’re confirming that you accept and agree to be bound by these terms and conditions.
2.3 Changes to Terms and Charges: We may update or change these terms and conditions or the charges for the Service at any time. We’ll try our best to inform you of any changes, but they will apply even if you don’t receive the notice.
2.4 Professional Service Management: We commit to managing and maintaining the Service and Application professionally, doing our best to ensure everything runs smoothly.
2.5 Right to Use the Service: You’ll have a non-exclusive, non-assignable, and non-transferable right to use the Service as per these terms.
2.6 Customer Support: Our Tinkle Help Team, Help Centre, and online knowledgebase are here to support you with any questions or issues you might have with the Service.
- Your Responsibilities
3.1 Lawful Use: You can only use our Service for lawful purposes and always in line with the Act and these Terms and Conditions.
3.2 Prohibited Uses: You must not, nor let anyone else: a. Send or receive any Inappropriate Content or any other material that would be a criminal offense or otherwise unlawful. b. Create any Artificial Inflation of Traffic. c. Sell or offer goods/services that break any laws or regulations. You must correct any such issues promptly after we notify you. d. Pretend to be someone else or use the Service to misrepresent another party.
3.3 Accuracy of Information: You promise that all Customer Information will be accurate and free from Inappropriate Content or any unlawful material, including any breaches of Intellectual Property Rights. We reserve the right to remove such content if we suspect it breaches this clause.
3.4 Responsibility for Customer Information: You are solely responsible for the accuracy, completeness, design, creation, maintenance, and updates of all Customer Information. We aren’t liable for any errors or inaccuracies in your information.
3.5 Licenses and Consents: You must obtain all necessary licenses and consents to use the Service and confirm you have done so. This is subject to the indemnity in clause 12.
3.6 Publicity Rights: You allow us to use you as a client case study or reference and to use your name in our publicity materials without needing your approval first.
3.7 Assistance: You will assist us with any queries or issues related to the Service as they arise.
3.8 Reasonable Use: You must not use the Service:
- Excessively or beyond what we deem reasonable.
- In a way that imposes an unreasonable or disproportionately large load on our infrastructure. c. For automated, high-volume, or excessive call-forwarding, auto-dialling, or call-blasting. d. To make automated, continuous, extensive, or excessive calls beyond what we consider reasonable business use.
3.9 Resale: You can’t sell or resell the Service to third parties.
3.10 No Spam: You won’t use the Service for any unsolicited telemarketing (“Spam”). If we receive any Spam complaints, you agree to pay us £25 per complaint, which will be added to your Usage Rates and charged to your payment card.
3.11 Correct Information: You confirm that the name, email address, phone numbers, postal address, and payment information provided when you register are correct. You agree to update your account immediately if any details change. Providing false information or fraudulent use of payment details may result in immediate termination of the Service and possible civil or criminal liability.
3.12 Legal Right and Ability: You confirm you have the legal right and ability to enter into this Agreement and use the Service according to its terms.
3.13 Authority: You confirm that the person entering into this Agreement on your behalf is over 17 and has the authority to bind you in relation to purchasing the Service.
3.14 Business Use Only: The Service is for business use only. By using it, you confirm you’re a business. If you’re not using the Service for business, you must not use it. You have 14 days from signup to cancel if you’re considered a consumer under Consumer Contracts Regulations. You will be responsible for the value of the Service used outside of the Free Trial, which will be deducted from any refund due if you cancel under this clause.
3.15 Material Breach: Any breach of this clause by you or your Users is considered a material breach and allows us to immediately terminate the Agreement. Whether you were aware of the content of any material so transmitted or not is irrelevant. We may suspend the Service without notice if we reasonably believe you are in breach of this clause. We may refuse to restore the Service until the issue is resolved to our satisfaction and you assure us there will be no further contravention.
3.16 User Compliance: You are responsible for informing your Users of the applicable terms of the Service and ensuring they comply with them.
3.17 Suspension and Termination: If we suspect you have breached this Agreement, we may: a. Suspend or terminate your access to the Service immediately without notice. b. Modify your pricing plan to reflect excessive use or abuse of billing periods, including converting to a fully-metered usage plan and charging pro rata for Service access.
3.17 Individual Accounts: Each Customer must have their own Tinkle account. Sharing user accounts is not allowed under any circumstances.
- Our Promises (Warranties)
4.1 Exclusion of Warranties: Except where the law says otherwise, we exclude all warranties, express or implied. This includes, but isn’t limited to, implied warranties of merchantability and fitness for a particular purpose in relation to providing the Service.
4.2 No Guarantee of Error-Free Service: We don’t promise that the Service will be error-free, virus-free, disruption-free, or compatible with all equipment and software configurations.
4.3 Our Liability: The full extent of our liability regarding the Service is detailed in clause 10.
- Service Specific Conditions
5.1 Number Allocation: After you register, we’ll allocate or let you select a Number to use with the Service, which callers will use to contact you according to this Agreement.
5.2 Number Usage: For the Free Service (see clause 7.3), if you don’t use the Service or Number for over 6 months, we might cancel the Service and reallocate the Number for future use by someone else.
5.3 Number Testing: It’s your responsibility to ensure the Number works correctly when diverted as per your provided information and to ensure all your equipment is in working order.
5.4 Call and Voicemail Recording: Any stored recordings will be held according to the Data Protection terms in clause 13. You must download and store recordings within 6 months from the termination date; they will be deleted after this period. We aren’t responsible for any recordings lost due to termination of the Service or this Agreement.
5.5 Emergency Calling: a. Emergency Calls are supported, including during the free trial. You must provide an address for each User for Emergency Calls. A separate address is needed for each User making Emergency Calls from different locations. Service quality depends on your internet connection and device settings. b. You and your Users must know that any power or connectivity failure will stop the Service and render Emergency calling unavailable. c. We’ll ensure Emergency Calls are identified as VoIP to the Emergency Call Handling Authority, prompting them to ask for location details. d. You must provide us with the address details for where the Service will be used and update this address when the Service is used from a different location. We’ll provide this address to the Emergency Call Handling Authority, who may direct emergency services to it if a dropped Emergency Call can’t be returned.
5.6 Number Porting Into the Service: To port an existing Number into the Service, contact us at support@tinkle.co to request and submit consent paperwork. There will be an administration charge of at least £19 per User, agreed in writing before porting. This charge applies per User, not per Number. Number porting isn’t available during a Free Trial. Porting during a minimum commitment term incurs an early termination fee, calculated by multiplying the remaining months by the relevant monthly charges.
5.7 Number Porting Away: To port a Number away from the Service, contact your new service provider to request this. We typically receive instructions within 10 days. Before contacting the new provider, email us at cancellations@tinkle.co for the relevant information to submit to your new provider. We can’t guarantee the new provider can port the Number. Porting some Numbers during the minimum term incurs an early termination charge, calculated by multiplying the remaining months by the monthly Number fee as listed at Tinkle Pricing. This will be confirmed in writing before porting. Number porting isn’t available during a Free Trial. Porting during a minimum commitment term results in an early termination fee, calculated by multiplying the remaining months by the relevant monthly charges.
5.8 Support: We offer support through the Application. For direct support queries, email help@tinkle.co.
5.9 Service-Related Communications: We’ll send you updates about the Service, including new features, service updates, support updates, and other general communications at our discretion. You can opt out of these updates at any time.
5.10 Marketing Communications: If you’ve opted in, we’ll occasionally send you selected marketing communications. You can opt out at any time. Opting out of marketing won’t affect service-related communications, which you’ll continue to receive.
5.11 Telephone Preference Service (TPS) : If you select TPS functionality when signing up or during Service use, this will prevent you from calling numbers on the latest TPS data file. The accuracy of TPS functionality depends on the information provided by TPS. Subject to clause 10.1, we’re not liable for any inaccuracies or omissions from this data. More details on TPS rules are available at ICO TPS Guide.
- Charges
6.1 Service Fees: You agree to pay the Service Fee for using our Service at the prices listed in the Application.
6.2 Price Changes: Prices may change, and we’ll do our best to notify you in advance. We may add new features that you can choose to use or not, which will be included in the Service Fees.
6.3 Currency and Taxes: All prices on the Application will be invoiced and paid in the currency you chose when signing up. Prices are exclusive of VAT or other sales, import, or export duties or taxes, which will be added at the point of payment.
6.4 Invoicing: All charges and VAT invoices will be emailed to you.
6.5 Payment Information: When you sign up, we’ll ask for your payment card information. Payments will be pre-authorised, subject to clause 6.7.
6.6 Viewing and Updating Information: You can view all current logs, Usage Rates, and update your information in the Application.
6.7 Billing Period: Invoices, except during the Free Trial period, will cover one-month periods and will be charged to your registered payment card on the invoice date. Any changes to your subscription during the billing period will be prorated and included in the next invoice. If you cancel the Service, charges will stop at the end of the current month, and you’ll be billed for that month’s usage and any prorated charges. Note that the Service, except for Emergency Calls, won’t work without a valid credit card registered with Tinkle.
6.8 No Refunds: Except as specified in clause 3.14, we don’t issue refunds for any reason.
6.9 Payment Failures: If your payment card fails or we experience payment card fraud or chargebacks, we may immediately suspend or terminate your account, stopping the Service.
6.10 Reinstatement of Service: If you make a valid payment, we’ll reinstate the Service and try to restore any data collected before suspension or termination. If you don’t make a valid payment within two weeks, we’ll retain your data for up to 90 days from suspension before deleting it. Your Number(s) will be reclaimed and made available for re-use.
6.11 Abuse of Free Trial and Billing Period: You must not abuse the Free Trial or billing periods to avoid paying Service Fees. If we suspect abuse, we may suspend or cancel your access to the Service without notice.
6.12 Increase in Charges: We may increase our Charges at any time with 30 days’ notice. You’ll have the option to accept the increase or cancel the Service within this period. Continued use after the notice period means you accept the increased Charges.
- Service Provision
7.1 Service Levels: Our service levels are detailed at Tinkle Pricing, with three paid plans: the “Tinkle Go” Plan, “Tinkle Unlimited” Plan and “Tinkle Anywhere” Plan.
7.2 Paid Plans: Both the Unlimited and PAYG services are subscription-based, billed monthly as per the latest pricing lists. With the PAYG plan, you’ll be charged for any additional usage based on our Usage Rates.
7.3 Free Service: We may offer a free service (the “Free Service”) in partnership with selected promotions or partners. This is an inbound call-only service, and the terms and conditions here apply unless stated otherwise. You cannot make outgoing calls with the Free Service unless you upgrade to the Unlimited or PAYG plan.
7.4 Free Trial: We might also offer a free trial (the “Free Trial”) granting access to many Service features for a specified period, as advertised. During this period, you can use a selection of Service features without charge. Note that not all features are available or unlimited during the Free Trial, and certain restrictions apply.
7.5 Card Payment Details for Free Trial: You won’t need to enter payment details when signing up for the Free Trial. If you decide to continue with the full Service after the Free Trial, you’ll need to enter your card details to confirm registration. Billing will then follow clause 6.7. If you don’t add payment details before the Free Trial ends, your account will be suspended.
7.6 Reactivating After Free Trial: You can add payment details up to 30 days after the Free Trial ends to reactivate your suspended account immediately. Premium Features and Usage Rates will be invoiced per clause 6.7. If you don’t enter your payment details within 30 days, the account will be terminated without charges.
7.7 Cancelling the Free Trial: If you terminate the Free Trial within the trial period, you won’t be billed for any usage as all features within the trial are included. The Free Trial will automatically cancel at the end of the period without needing a cancellation request.
7.8 Complaints: To make a complaint, please contact us at hello@tinkle.co.
- Security
8.1 No Circumventing Security: You must not try to bypass system security or access the source code of the Software or the Application.
8.2 Confidentiality of Security Information: Keep all passwords and other security information related to the Software or the Application confidential.
8.3 Proper Use of Credentials: You’re responsible for the security and proper use of all user IDs and passwords connected with the Service. Ensure they are kept confidential, secure, used properly, and not disclosed to unauthorised persons.
8.4 Reporting Security Issues: If you suspect that a user ID or password has become known to someone unauthorised or is being misused, inform us immediately.
8.5 Suspension of Service: We may suspend access to the Service if: a. There is an actual, suspected, or likely security breach or DDoS attack. b. You fail to comply with our security instructions or requests. c. We have reasonable grounds to believe an event leading to immediate termination rights has occurred or is about to occur.
8.6 Reactivation of Service: If we suspend access to the Service, we’ll reactivate it as soon as reasonably practicable once the issue is resolved to our satisfaction.
8.7 Password Changes: We may require you to change any or all of the passwords used in connection with the Service.
- Termination
9.1 How to Terminate To terminate the Agreement, you must either cancel your account through the Application by deleting all users, or email cancellations@tinkle.co with formal written confirmation pursuant to clause 19.
9.2 Termination During Free Trial If you’re in the Free Trial period, we will terminate the Agreement immediately upon receiving your cancellation request.
9.3 Termination After Free Trial If you’re not in the Free Trial period and have a registered account, we will terminate the Agreement 7 days after receiving your written confirmation of cancellation. If you downgrade the Service during the month, the downgrade will apply from the following month.
9.4 Loss of Numbers If you terminate the Agreement voluntarily, you will permanently lose your Number(s) unless you request to port them out per clause 5.7.
9.5 Final Balance Upon termination, any outstanding balance will be invoiced and collected according to clause 6.
9.6 Termination by Tinkle We may terminate this Agreement without notice if you breach any part of this Agreement or are subject to Insolvency Proceedings. Your obligation to pay current charges will survive the termination of this Agreement.
- Limitation of Remedies and Liability
10.1 Attention to This Clause: This clause is particularly important.
10.1 No Exclusion for Certain Liabilities: Nothing in this Agreement excludes or limits either party’s liability for death or personal injury caused by negligence, fraud, or any other liability that cannot be excluded or limited under applicable law.
10.2 No Liability for Indirect Losses: Tinkle is not liable to you or any third party for any indirect, incidental, or consequential loss or damages arising under this Agreement. This includes, but isn’t limited to, loss of profits, business, earnings, or opportunity.
10.3 Limitation of Liability: Except as stated in clause 10.1, Tinkle is not liable to you in contract, tort (including negligence), or otherwise in relation to this Agreement.
10.4 Cumulative Rights and Remedies: The provisions of this Agreement and the rights and remedies of the parties under this Agreement are cumulative. They do not prejudice or add to any rights or remedies a party may have at law or in equity.
10.5 No Obligation to Edit Information: You accept that Tinkle is neither obligated nor able to edit, review, or modify Customer Information or Third Party Information, and we do not examine how you use the Service. However, we reserve the right to remove any Customer Information or Third Party Information if we reasonably believe it breaches any laws, regulations, or third-party rights.
10.6 Exclusion of Liability for Information and Services: Tinkle excludes all liability of any kind for Customer Information, Third Party Information, or any other material accessed using the Service. We are not responsible for any goods (including software) or services provided, advertised, sold, or otherwise made available through the Service.
- Intellectual Property Rights
11.1 Customer Intellectual Property: All Intellectual Property Rights in Customer Information (“Customer Intellectual Property”) are and shall remain the property of the Customer and its licensors.
11.2 Tinkle Intellectual Property: Except for what’s stated in clause 11.1, all Intellectual Property Rights in the Service, Software, Application, Services, and any supporting or associated materials related to the Software, Application, or Service developed by Tinkle under this Agreement or in connection with it, whether specific to the Customer or not, along with any other materials provided or made accessible to the Customer by Tinkle (“Our Intellectual Property”), are and shall remain Tinkle’s sole property.
11.3 License to Use Customer Intellectual Property: The Customer grants Tinkle a non-transferable, royalty-free license to use the Customer Intellectual Property to fulfill its obligations under this Agreement.
11.4 License to Use Tinkle Intellectual Property: Tinkle grants the Customer a non-transferable, non-exclusive, royalty-free license to use Our Intellectual Property for receiving and using the Service during the term of this Agreement.
- Third Party Transactions
12.1 Responsibility for Transactions: You remain solely responsible for any transactions between you or your Users and any third parties who access or rely on the Service or any information on the site. Tinkle is not a party to, nor responsible for, any such transactions.
12.2 Indemnity for Third-Party Claims: You agree to indemnify and keep indemnified Tinkle from any claims brought by third parties arising from your or your Users’ use of the Service, any breach of your obligations under clause 3, Tinkle’s hosting of the Service, or any claims resulting from Customer Information or other material you provide to Tinkle.
12.3 Scope of Indemnity: The indemnity in clause 12.2 includes all costs, expenses, damages, awards, fees (including reasonable legal fees), and judgments finally awarded against Tinkle from such claims. Additionally, you agree to notify Tinkle of such claims, give Tinkle full authority to defend, compromise, or settle them, and provide all reasonable assistance necessary to defend these claims at your expense. Tinkle agrees to consult with you regarding any actions taken in respect of such claims.
- Data Protection
13.1 Compliance with Data Protection Legislation: Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause adds to, and does not relieve, remove, or replace, a party’s obligations under the Data Protection Legislation.
13.2 Roles of the Parties: For the purposes of the Data Protection Legislation, the Customer is the Controller and Tinkle is the Processor of any Personal Data. Tinkle processes Personal Data according to the following scope, nature, and purpose:
- Nature and Purpose: To provide the Services to the Customer in accordance with this Agreement.
- Subject Matter: The provision of Services to the Customer, as set out in this Agreement.
- Duration: The term of the contract, until Tinkle deletes the data per this Agreement.
- Categories of Personal Data: Data relating to individuals provided by the Customer or authorised persons.
- Types of Data Subject: Data Subjects using the Services and data sent or provided to Tinkle through those Services.
13.3 Registrations and Notifications: Each party confirms it holds, and will maintain during the term of this Agreement, all registrations and notifications required under the Data Protection Legislation appropriate to its performance of obligations under this Agreement.
13.4 Tinkle’s Obligations: Tinkle will: a. Process Personal Data only on documented instructions from the Customer, unless required by law to do so, in which case Tinkle will inform the Customer unless prohibited by law. b. Ensure persons authorised by Tinkle to process the Personal Data have committed to confidentiality or are under a statutory obligation of confidentiality. c. Take all measures required by Article 32 of the UK GDPR regarding security of processing. d. Not commission any subcontractor for Processing Personal Data without the Customer’s prior written consent, and ensure any such subcontractor complies with the provisions of this clause 13 as if it were a party to this Agreement. e. Assist the Customer by implementing appropriate technical and organisational measures to fulfill the Customer’s obligations to respond to Data Subject’s rights requests under the Data Protection Legislation. f. Assist the Customer in ensuring compliance with Articles 32 to 36 of the UK GDPR regarding the security of processing, breach notification, impact assessment, and consultations with Supervisory Authorities. g. At the Customer’s option, delete or return all Personal Data to the Customer after termination of this Agreement and delete existing copies unless required by law to retain them. h. Make available to the Customer all information necessary to demonstrate compliance with this clause and allow for and contribute to audits, including inspections, conducted by the Customer or an auditor mandated by the Customer. i. Inform the Customer immediately if an instruction from the Customer infringes or might cause infringement of Data Protection Legislation. Tinkle shall not be liable for any instruction from the Customer that breaches Data Protection Legislation if Tinkle could not reasonably be expected to know such instruction would cause a breach.
13.5 Notification of Data Breaches: Each party will notify the other without undue delay if it becomes aware of a Personal Data Breach related to either party’s obligations under this Agreement.
13.6 Data Protection Impact Assessments: The Customer shall conduct appropriate data protection impact assessments to ensure compliance with Data Protection Legislation. Tinkle will assist the Customer, as necessary and upon request, in carrying out any such assessments and prior consultations with the Supervisory Authority.
13.7 Compliance with Article 5(1) : It is your responsibility to ensure that Personal Data is dealt with in a way that complies with Article 5(1) of the UK GDPR.
13.8 Customer Responsibilities: The Customer shall ensure that: a. It can justify the Processing of Personal Data in accordance with Article 6(1) of the UK GDPR, including obtaining any required consents, and has recorded this in accordance with GDPR requirements. b. Where Special Categories of Personal Data are processed, Article 9(2) of the UK GDPR applies before processing takes place. c. No Special Categories of Personal Data are sent to Tinkle unless Article 9(2) applies. d. All necessary consents and notices are in place for the lawful transfer of Personal Data to Tinkle for the duration and purposes of this Agreement.
13.9 Liability for Processing: Tinkle will: a. Not be liable for any damage or consequences resulting from Processing Personal Data in compliance with Customer instructions, unless Tinkle knew or should have known such instructions would breach Data Protection Legislation. b. Not be liable for refusing to comply with Customer instructions due to concerns of breaching Data Protection Legislation.
13.10 Indemnity: The Customer agrees to indemnify and defend Tinkle at its own expense against all costs, claims, damages, or expenses incurred by Tinkle due to any failure by the Customer or its employees or agents to comply with this clause 13.
13.11 Engagement of Third Parties: The Customer authorises Tinkle to engage third parties as subcontractors for Processing Personal Data. Tinkle will inform the Customer of such subcontractors, and this Agreement will serve as prior written consent to such subcontracting.
13.12 New Subcontractors: If Tinkle engages a new subcontractor for Processing during this Agreement, it will inform the Customer at least 30 days in advance. The Customer may object to this engagement, and as the sole remedy, terminate this Agreement according to clause 9.1.
13.13 Privacy and Cookies Policy: See the Privacy and Cookies Policy for how Tinkle processes any Personal Data as a Controller.
13.14 Revisions to Data Protection Clause: The parties may revise this clause 13 by mutual agreement, replacing it with applicable Controller to Processor standard clauses or similar terms part of a certification scheme, on not less than 30 days’ notice.
- Force Majeure
14.1 No Liability for Force Majeure Events: If either party is unable to perform any obligation under this Agreement due to circumstances beyond their reasonable control, such as lightning, floods, exceptionally severe weather, fire, explosion, war, acts of terrorism, civil disorder, industrial disputes (including those involving employees of either party), breakdown of plant or machinery, default of suppliers or subcontractors, acts of local or central government or other competent authorities, or events beyond the reasonable control of suppliers to either party, that party will not be liable to the other for failing to perform.
- Confidentiality
15.1 Confidential Information: Each party must keep all information concerning the business, finances, technology, affairs, clients, marketing plans of the other party, and other information identified as confidential or inherently confidential (including the terms of this Agreement) (“Confidential Information”) confidential. This obligation extends to ensuring that their employees also maintain confidentiality.
15.2 Protection of Confidential Information: Each party must protect the Confidential Information of the other party against unauthorised disclosure using the same degree of care as it uses to protect its own confidential information of a similar nature, but at least a reasonable degree of care.
15.3 Permitted Disclosure: Confidential Information may be disclosed by the receiving party to its employees, affiliates, and professional advisers, or in Tinkle’s case, the employees of any other group company or their suppliers who need to know the information. Confidential Information may not be disclosed to any other party without the written consent of the other party.
15.4 Exceptions: The obligations set out in this clause do not apply to Confidential Information which the receiving party can demonstrate with written evidence:
- Came into the public domain other than through a breach of this clause.
- Is required by law to be disclosed.
15.5 Survival of Obligations: The obligations of confidentiality in this clause will continue even after the expiry or termination of this Agreement, remaining in effect as long as the information is confidential in nature.
- Orders and Statements of Work
16.1 Orders and SOWs: The parties may, from time to time, agree upon Orders or SOWs for the provision of the Service.
16.2 Incorporation by Reference: Each Order or SOW shall be incorporated into and form part of this Agreement. In the event of any conflict between the terms of this Agreement and any Order or SOW, the terms of the Order or SOW shall prevail with respect to the specific Services or Products provided under that document.
16.3 Execution of Orders and SOWs: An executed Order or SOW will be considered a valid amendment to this Agreement and will become legally binding under this Agreement on the day you sign the Order.
16.4 Governing Terms: Unless otherwise specified in an additional Order or SOW, all terms and conditions of this Agreement shall apply to the services or products provided under such Orders or SOWs.
16.5 Order Effective Date, Duration and Renewal: The Order or SOW will commence on the Order Effective Date and will last for the initial minimum Term outlined in the Order or SOW. When this period ends, the Contract will automatically renew for another twelve (12) months on a twelve (12) month rolling basis. If you wish to terminate the Contract, give us at least sixty (60) days’ written notice before the end of the current or renewed term. Termination will take effect after the current or renewed term ends.
16.6 Supplier’s Right to Terminate: We may terminate the Contract or any other contract with you at any time by giving you written notice if:
- You commit a material breach of the Contract that cannot be remedied.
- You commit a material breach of the Contract and do not fix it within 7 days of receiving written notice.
- You fail to pay any due amount within 7 days after we notify you that payment is overdue.
- Any of your necessary consents, licenses, or authorizations are revoked or modified, preventing you from fulfilling your obligations or receiving any benefits under the Contract.
16.7 Termination for Business Cessation or Financial Issues: We may terminate the Contract if you:
- Stop or indicate you intend to stop carrying on all or a significant part of your business.
- Are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1886, or if we reasonably believe this to be the case.
- Become subject to a company voluntary arrangement under the Insolvency Act 1886.
- Have a receiver, manager, administrator, or administrative receiver appointed over all or part of your undertaking, assets, or income.
- Have a resolution passed for winding up.
- Have a petition presented for winding up, or an application is made for an administration order, or any winding-up or administration order is made against you.
- Have a freezing order made against you.
- Are subject to any recovery or attempted recovery of items supplied to you by a supplier retaining title to those items.
16.8 Customer Notification of Termination Events If you become aware of any events or circumstances that may entitle us to terminate the Contract under this clause, you must notify us immediately in writing.
16.9 Survival of Rights and Liabilities Termination or expiry of the Contract does not affect any accrued rights and liabilities up to the date of termination.
16.10 Payment Obligations upon Termination If you terminate the Contract, you remain liable to pay the full Price for the initial Term as specified in the Order or the renewed term, as applicable. This amount becomes payable immediately upon termination.
16.11 Loss of Telephone Numbers Upon termination, any telephone number used by you as part of the Service will no longer be assigned to you. We cannot guarantee that this telephone number will be available to you at a later date.
16.12 Cancellation of Ordered Services If you cancel any ordered Services or part of them, even if provisionally accepted by us, you agree to reimburse us for any costs incurred in preparing to deliver the Services, in addition to any standard cancellation charges applicable at the time. We will take reasonable steps to mitigate these costs, but the cancellation charge may include lost revenue due to short-notice reallocation of staff. If you have had a site survey, you will pay the full site survey charges. If the Service includes any excess construction charges, these will be payable in full upon cancellation. If we have provided any Services, you must return them immediately in full working order at your cost.
- Notices
17.1 Language and Format: All notices under this Agreement must be in writing in the English language or accompanied by a properly prepared translation into English.
17.2 Delivery Methods: Notices must be delivered by email, with formal written confirmation served by hand or prepaid first-class post to the registered office of the other party or to another address as may be notified in writing.
17.3 Receipt of Notices: A notice given under this clause is deemed received: a. If by email, on receipt of the email, subject to receipt of formal written confirmation in due course. b. On the date of delivery if delivered by hand before 5.00 pm on a Business Day; otherwise, on the next Business Day following the date of delivery. c. On the second Business Day from and including the day of posting in the case of prepaid first-class post.
- Assignment
18.1 Customer Restrictions: You cannot assign, resell, sublease, or transfer the Service (or any part of it) or any of your rights or obligations under this Agreement without Tinkle’s prior written consent.
18.2 Consequences of Breach: If you breach this restriction, whether successfully or not, Tinkle has the right to immediately terminate the Service and/or this Agreement.
18.3 Tinkle’s Rights: Tinkle may assign or transfer its rights and/or obligations under this Agreement by providing written notice to you.
- Entire Agreement
19.1 Complete Understanding: This Agreement, along with any Orders or Statements of Work (SOWs) and the Privacy Policy, sets out the entire agreement and understanding between the parties. It supersedes any previous agreements between them regarding the subject matter of this Agreement. No agreements, promises, assurances, warranties, undertakings, representations, statements, or inducements, oral or written, not contained herein or in any additional Orders or SOWs, shall bind either party.
19.2 Reliance on Agreement: By entering into this Agreement, the Customer acknowledges that it does not rely on any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement or in any additional Orders or SOWs.
19.3 Third Party Rights: No person or entity that is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1899 to enforce any terms of this Agreement.
19.4 Variation of Agreement: The Customer may not vary this Agreement without Tinkle’s written consent. However, additional Orders or SOWs may be agreed upon in writing by both parties as provided in clause 16.
19.5 Severability: If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.
19.6 Modification of Invalid Provisions: If any invalid, unenforceable, or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19.7 No Partnership or Agency: Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as an agent of the other for any purpose. No party shall have the authority to bind the other party or to contract in the name of, or create a liability against, the other party in any way or for any purpose.
19.8 Governing Law: This Agreement and any disputes or claims (whether contractual or non-contractual) arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
19.9 Jurisdiction: The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) that arises out of or in connection with this Agreement.
TINKLE TELECOM LTD
MASTER SERVICES AGREEMENT FOR FIXED LINE SERVICES
Last Updated: 30/11/2022
INDEX
- Definitions and Interpretation
- Term
- Orders
- Services
- Software
- Equipment
- Charges and Rebates
- Use of the Services
- Suspension of the Service
- Maintenance
- Intellectual Property Rights
- Indemnities
- Limitation of Liability
- Force Majeure
- Termination
- Consequences of Termination
- Confidential Information
- Assignment
- Escalation and Dispute Resolution
- No Partnership or Agency
- Variations
- Entire Agreement
- Notices
- Waiver
- Severance
- Governing Law and Jurisdiction
- Counterparts
- Anti-Bribery
- Agreement & Schedule Amendment
THIS AGREEMENT is made BETWEEN:
- TINKLE TELECOM LTD is a limited company incorporated in England and Wales with registration number 11117564, whose registered office is at CARLTON HOUSE, 3-5 ALMA ROAD, HEADINGLEY, LEEDS, LS6 2AH and principal place of business is at CARLTON HOUSE, 3-5 ALMA ROAD, HEADINGLEY, LEEDS, LS6 2AH (“TINKLE TELECOM”);
And
- THE CUSTOMER identified in the contract application (the “Customer”)
The parties to this Agreement agree to sign this Agreement by electronic signature (whatever the form the electronic signature takes) and agree that such method of signature shall be equally conclusive of their intention to be bound by the terms and conditions of this Agreement.
By signing up for the Services you warrant that you are capable of entering into a binding contract; or are acting with the express permission of a person or organisation and using the payment details of that person and that they also agree to be bound by the terms of this Agreement. You also agree to comply and adhere to any and all applicable laws and regulations in relation to this Agreement.
- Definitions and Interpretation
- In this Agreement, the following expressions shall have the following meanings unless the context otherwise requires:
“Acceptable Use Policy” | TINKLE TELECOM’s acceptable use policy concerning use of the Service at the Appendix to this Agreement as may be updated from time to time in accordance with clause 8.13.7; |
“the Act” | the Communications Act 2003; |
“Agreement” | the execution page, the Particulars of Contract and these General Terms and Conditions; |
“Appropriate Use” | the use of services in accordance with the Numbering Conventions set down by Ofcom which govern the use and management of numbers and codes from the United Kingdom’s Specified Numbering Scheme; |
“Associated Company” | each and any Parent Undertaking or Subsidiary Undertaking of a company and each and any Subsidiary Undertaking of a Parent Undertaking of that company. Parent Undertaking and Subsidiary Undertaking shall have the meanings given to them as in section 1162 of the Companies Act 2006; |
“Business Day” | any day which is not a Saturday, a Sunday or a bank or public holiday in England; |
“Charges” | the charges for use, installation and delivery of the Services as specified in the Service Schedule; |
“CLI” or “Caller Line Identifier” | a single telephone line with a unique telephone number allocated as part of the UK national switched network; |
“Customer” | the party identified in the application for an account; |
“Customer Information” | the information that the Customer should provide to TINKLE TELECOM in relation to the Services (including all relevant details which relate to the Customer’s and/or any User’s requirement for the provision of the Services and information more particularly described in the Service Schedule); |
“Code” | any Code of Practice relevant to the Services issued by Phonepay Plus or Ofcom as amended from time to time; |
“Confidential Information” | all confidential information or data (whether oral, visual, recorded in writing, in any other medium or by any other method) disclosed to or obtained by one party from the other or from a third party, including any information relating to a Party’s operations, processes, plans, intentions, price lists, pricing structures, know-how, design rights, trade secrets, software, market opportunities, customers and business affairs; |
“TINKLE TELECOM Network” | the system for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy of (i) speech, music and other sounds, (ii) visual images signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images or (iii) signals serving for the actuation or control of machinery or apparatus which TINKLE TELECOM operates in connection with the provision of the Service; |
“the Equipment”
| any all equipment owned or controlled by TINKLE TELECOM utilised in the provision of the Service, including but not limited to the equipment related to or used in connection with the metallic path facility provided by a Service Provider; |
“Go Live Date” | the date when TINKLE TELECOM notifies the Customer or any User that the Service is ready for use by the Customer or User, or if earlier the date when the Customer or User or starts to use the Service; |
“Insolvency Event” | the occurrence of any of the following events (or any event analogous to any of the following in a jurisdiction other than England and Wales) in relation to the relevant entity: (b) the filing of a notice of intention to appoint an administrator of or, the filing of a notice of appointment of an administrator of or, the making of an administration order in relation to the entity or the appointment of a receiver or administrative receiver of, or an encumbrance taking possession of or levying distress over, or selling, the whole or any part of the entity’s undertaking, assets, rights or revenue; (c) the entity proposing to enter into, or entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them or takes steps to obtain a moratorium or makes an application to a court of competent jurisdiction for protection from its creditors; (d) the entity being unable to pay its debts or being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or |
“Intellectual Property Rights” | (i) patents, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, know-how and confidential information; (ii) all other intellectual property rights and similar or equivalent rights in the world which currently exist or are recognised in the future; and (iii) applications, extensions and renewals in relation to any such rights; |
“Loss” or “Losses” | any and all losses, damages, costs, expenses, (including court or legal expenses) or other liabilities of whatever nature (whether foreseeable or not); |
“Order” | the Customer’s request for the supply of Services to a User as accepted by TINKLE TELECOM in accordance with the applicable Services Agreement; |
“Service” | the services provided by TINKLE TELECOM to the Customer as specified in a Service Schedule; |
“Service(s) Schedules” | any agreement between the parties stated as being subject to the terms of this Agreement; |
“Service Credit” | the credit offered by TINKLE TELECOM for any failure by TINKLE TELECOM to perform the Services in accordance with the Service Levels as more particularly specified in the Service Schedule; |
“Service Levels” | the service levels in respect of the Services and specified in the Service Schedule; |
“Service Minimum Period” | the minimum period for the provision of the Service as specified in the Service Schedule; |
“Service Provider” | any person providing underlying or network facilities in connection with the Services; |
“Support Processes” | the means of contacting TINKLE TELECOM’s support team and reference material outlining standard procedures; |
“Trade Names” | TINKLE TELECOM together with such other trade names and/or logos as TINKLE TELECOM may adopt in connection with the operation of its business from time to time; |
“User” | a party to whom the Customer resells the Services and any other parties (including without limit any ultimate end user) to whom the Services are subsequently resold from time to time in accordance with the terms of this Agreement; |
“VAT” | value added tax as defined in the Value Added Tax Act 1994 and including any other tax from time to time replacing it or of a similar fiscal nature. |
“Year” | means the period of 12 months from the date of the Agreement and each consecutive period of 12 months thereafter. |
- The clause headings are for convenience only and shall not affect the interpretation of this Agreement.
- References to the singular include the plural and vice versa, and references to one gender include the other gender.
- Any phrase introduced by the expressions “includes”, “including” or “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- Any reference to a statute, statutory provision or subordinate legislation (together “legislation”) shall (except where the context otherwise requires) (i) be deemed to include any bye-laws, licences, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under that legislation and (iii) shall be construed as referring to any legislation which replaces, reenacts, amends or consolidates such legislation (with or without modification) at any time.
- Unless specifically provided to the contrary all notices under this Agreement shall be in writing.
- The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
- References to times are to London
- Term
This Agreement shall be effective upon the Customer Party completing the TINKLE TELECOM online sign-up form and shall continue unless terminated in accordance with clause 15, for a minimum period of one (1) month (the “Initial Term”) and shall continue thereafter until terminated in accordance with clause 15.
- Orders
- The terms and conditions set out in this Agreement shall:
- apply to and be incorporated into each Service Schedule; and
- prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.
- The Customer shall submit a request to TINKLE TELECOM for each Service required by the Customer and if TINKLE TELECOM is prepared to provide those services to the Customer under this Agreement a general Service Schedule shall be entered into between the parties in relation to those services, and then if Orders are to be placed then they shall be placed pursuant to the terms of the relevant Services Schedule.
- Each individual Service is subject to its own Service Minimum Period the Service Minimum Periods are stated either in the Service Schedules for the Services provided under those schedules or, specifically on the order documentation for Services that carry variable Service Minimum Periods by specific Service or, failing any specific reference the Service Minimum Period defaults to thirty days.
- Each individual Service is subject to its own notice period, in the absence of a specified notice period for a Service the default notice period is thirty days such notice to expire at the end of the Service Minimum Period.
- Some Services are subject to termination fees which are payable on termination of the Service these are specified in the specific wholesale pricing tables where applicable.
- Services
- During the Term, and subject to the Customer’s compliance with this Agreement, TINKLE TELECOM shall provide the Services to the Customer to the standards of a reasonable and prudent communications services provider offering the same or similar services in the United Kingdom and in accordance in all material respects with the Agreement and the Service Schedule.
- TINKLE TELECOM shall use reasonable endeavours to perform the Services in accordance with the Service Levels which shall apply with effect from the Go Live Date until the Service Schedule is terminated in accordance with its terms.
- If TINKLE TELECOM fails to provide the Services to meet any Service Levels then:
- TINKLE TELECOM shall at TINKLE TELECOM’s expense deploy as soon as reasonably practicable such additional resources as are reasonably necessary to perform the Services in the future in a manner likely to meet the Service Levels.
- for the avoidance of doubt any failure of TINKLE TELECOM to provide the Services in accordance with the Service Levels shall not be a material breach unless such breach is in itself material or is a minor breach that continues to a material extent, and is demonstrated to have a detrimental effect on the services provided and the Customer has first served written notice on TINKLE TELECOM giving reasonable particulars of the relevant breach or breaches and afforded TINKLE TELECOM a period of two months to remedy the deficiency and TINKLE TELECOM shall have failed to comply with clause 4.3.1.
- TINKLE TELECOM shall not be liable for any failure to comply with a Service Level to the extent is caused by the act or omission of any network operator
- TINKLE TELECOM shall use reasonable endeavours to meet any dates or times for performance of the Services specified in the Service Schedule and the Order. Except as expressly stated to the contrary in a Service Schedule or the Order any dates specified by TINKLE TELECOM for performance of the Services or delivery in relation to the Agreement are an estimate only and in relation to the same and time shall not be of the essence. If no delivery dates are specified within the relevant Service Schedule delivery shall be within a reasonable time.
- TINKLE TELECOM may at any time make any changes to the Services supplied as it in its reasonable opinion deems necessary provided always that (a) any changes shall not materially affect the performances and/or accessibility of the Service(s) in a detrimental way; and (b) TINKLE TELECOM shall provide the Customer as much notice as practicable prior to any such change taking effect (having due regard to the likely impact on the Customer and/or the Users and the nature of such change).
- Customer contact
- The Customer and TINKLE TELECOM shall each promptly provide the other with details of those personnel with whom each may, in TINKLE TELECOM’s performance of its obligations in the provision of any of the Services and the Customer’s use of the Services, wish or be required to interface. These can be accessed and changed through the TINKLE TELECOM Control Panel at any time.
- Each party shall promptly notify the other of any amendments to the contact details provided and in the case of the Customer the amended details shall be provided to TINKLE TELECOM in accordance with clause 4.6.1.
- TINKLE TELECOM shall not be liable for any failure to satisfactorily provide any Services to the extent that such failure is due to:
(i) the Customer having failed to provide the requisite information or to update such information as required by this clause 4.6; or
(ii) TINKLE TELECOM being unable to make contact with the Customer’s nominated personnel due to such personnel being unavailable.
- Software
- TINKLE TELECOM hereby grants the Customer the right to use all software provided by TINKLE TELECOM as part of the Services. Such licence shall be a personal, revocable, non-transferable, non-sub licensable right to use such software (without the requirement to pay licence fee or royalty fees) to the extent necessary to use the Services as contemplated by the Agreement and any Services Agreement. Such licence shall terminate immediately on the cessation of the provision of the applicable Services by TINKLE TELECOM.
- TINKLE TELECOM shall, as soon as is reasonably practicable (after becoming aware) notify the Customer in the event that any use of the Services by the Customer or any User causes TINKLE TELECOM to be in breach of any software licence which TINKLE TELECOM has in place with any third-party licensor in order to provide the Services (or any part thereof). The Customer shall, as soon as is reasonably practical after such notification cease to use the Services in such manner and/or shall procure the same of Users (as applicable).
- Equipment
- The Equipment will at all times remain the property of TINKLE TELECOM or, if provided by a Service Provider, that Service Provider unless otherwise agreed in writing.
- The Customer will:
- ensure that the Equipment is used only for the purposes of the Services;
- not connect any other equipment to the Equipment except as expressly authorised in writing by TINKLE TELECOM;
- not tamper with or remove any label on any Equipment;
- not (and procure that the Users do not) open, disconnect, repair, maintain, modify or remove the Equipment; and
- permit TINKLE TELECOM and/or any Service Provider to modify, change, add or replace the Equipment or any part of the Equipment;
- The Customer is responsible for, and will, subject to clause 13, indemnify TINKLE TELECOM in respect of, all costs, expenses and liabilities that TINKLE TELECOM incurs as a result of any loss of or damage to the Equipment caused by the Customer other than where the damage or loss has been caused as a result of the Customer acting in accordance with instructions issued by TINKLE TELECOM.
- The Customer will not permit any lien, charge or other like restriction to be placed on the Equipment.
- TINKLE TELECOM may take possession of the Equipment from the Customer’s or a User’s premises or take other reasonable steps which TINKLE TELECOM reasonably believes are necessary to protect its or the Service Provider’s ownership rights in the Equipment and the Customer will use its reasonable endeavours to provide TINKLE TELECOM with the necessary access to exercise these rights.
- Promptly after expiry or earlier termination of any Services Agreement, the Customer will use its reasonable endeavours to provide TINKLE TELECOM and Service Providers with access to the Equipment and all reasonable assistance in the removal of the same
- Charges
- The Customer shall pay to TINKLE TELECOM the Charges for the Services provided to the Customer. Such Charges shall be invoiced in advance for rentals and arrears for usage charges the manner set out in this Agreement.
- All Charges payable by the Customer shall be payable to TINKLE TELECOM in British Pounds Sterling within a maximum thirty (30) days of the date of the TINKLE TELECOM invoice.
- The Charges are exclusive of all applicable taxes, including VAT, sales taxes and duties of levies imposed by any authority, government department, all of which, if any, shall be assumed and paid promptly when due by the Customer.
- If the Customer fails to make any payment due to TINKLE TELECOM under the Agreement and/or any Services Agreement by the due date for payment (and such late or non-payment is not the subject of a bonafied dispute in accordance with clause 7.4), then without prejudice to any other rights and remedies of TINKLE TELECOM:
- TINKLE TELECOM may upon not less than 7 days’ prior written notice to the Customer suspend the performance of the Service(s) to which the unpaid (or partly unpaid) invoice(s) relate and shall be under no obligation to provide any or all of such Services while the invoice(s) concerned remain unpaid, provided that notwithstanding any suspension of the Services by TINKLE TELECOM, TINKLE TELECOM may continue to incur expenses and/or charges of Service Providers (including, without limit, rental charges) which shall be payable by the Customer; and
- TINKLE TELECOM may charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate. Such interest shall accrue on a daily basis from due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest immediately on demand by TINKLE TELECOM. This clause shall not apply to payments that the Customer contests in good faith;
- In the event that the Customer acting reasonably and in good faith disputes an invoice or any part thereof raised by TINKLE TELECOM then provided that it notifies TINKLE TELECOM in writing of the same as soon as is reasonably practicable and pays such part of any invoice which is not the subject of the bona-fide dispute in accordance with clause 7.1, then the provisions of 7.4.1 and 7.4.2 shall not apply to such disputed payment, unless and until it is subsequently determined that either the whole or part of the payment which is the subject of the bona fide dispute should have been payable to TINKLE TELECOM by the original due date.
- For the avoidance of doubt, all Charges due to TINKLE TELECOM under the Agreement shall be paid in full by the Customer by the due date for payment notwithstanding that the Customer may not have received payment from its User(s) and any dispute between the Customer and its Users regarding billing, the provision of services or otherwise shall be the sole responsibility of the Customer.
- Any fraud or other improper use of the Services committed by the Customer or its User(s) shall not relieve the Customer of its payment obligations to TINKLE TELECOM under the Agreement.
- TINKLE TELECOM will consider billing queries from the Customer only if such queries are made in writing within thirty (30) days of the date of the applicable TINKLE TELECOM invoice in respect of charges in connection with the use of the Services. In the absence of any queries from the Customer pursuant to this clause, the Customer is deemed to have accepted the applicable TINKLE TELECOM invoice.
- A Credit Note shall not be payable unless the Customer requests it within sixty (60) days from the date of the service affecting event.
- TINKLE TELECOM may at any time or times, with prior written notice to the Customer, set off any liability against amounts due by TINKLE TELECOM to the Customer. Any exercise by TINKLE TELECOM of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this Agreement or otherwise.
- All charges and rebates shall be calculated by reference to data recorded or logged by TINKLE TELECOM and not to data recorded or logged by the Customer (save in the case of demonstrable error).
- TINKLE TELECOM will regularly review the Charges in consultation with the Customer. If TINKLE TELECOM’s costs of providing the Services increase as a result of any changes in legislation or regulations applying to the performance of the Services or increased taxation or increases in the charges of any relevant Service Provider, TINKLE TELECOM may increase the Charges to reasonably reflect the increase in the cost of providing the Service(s) by giving not less than thirty (30) days’ prior written notice to the Customer, such notice to identify the amount of the increase in the Charges.
- If the Customer disputes any portion of an invoice based upon usage of the Services, TINKLE TELECOM records of such usage shall be presumed to be accurate unless determined otherwise by an independent expert appointed in accordance with clause 20 (Escalation and Dispute Resolution).
- TINKLE TELECOM reserves the right to pass on to Customers on a cost-plus basis (adding 10%) any charges levied by the Service Provider to which it is exposed as a result of the Customer and/or its Users’ and/or Additional Users’ actions.
- Payment Methods available are defined on the Customer Control Panel, website and invoices, TINKLE TELECOM reserve the right to dictate the method of payment when it deems necessary. By entering any credit or debit details onto the Customer Control Panel, you have agreed to allow TINKLE TELECOM to collect the respective amounts invoiced on due date without requiring prior notice until the amount owed are cleared.
- TINKLE TELECOM reserves the right to carry out a credit check prior or after the Customer’s acceptance of this agreement and may request copies of two utility bills from the declared business address. Subsequent to any credit check TINKLE TELECOM reserves the right to request a deposit or 3rd party guarantee, to be specified at that time, from the Customer as a condition of providing or continuing Service. Any deposit shall be held by TINKLE TELECOM for a period of twelve (12) months (or until the Agreement is otherwise terminated) when it shall be returned in full or credited against an invoice at TINKLE TELECOM’s sole discretion. Any deposit does not relieve the customer of the responsibility for the prompt payment of invoices in accordance with relevant Clauses contained herein.
- Use of the Services
- The Customer shall and shall use its reasonable endeavours to procure that the Users shall use the Services in accordance with our support processes and any reasonable operating instructions issued by TINKLE TELECOM from time to time in writing (which shall for these limited purposes include email) to the Customer. TINKLE TELECOM shall not be liable for any failure or delay in the provision of the Services and/or the performance of its obligations under the Agreement and/or any Services Agreement to the extent that such failure and/or delay has been caused by any failure and/or delay by the Customer and/or any User to comply with the support processes and/or any reasonable operating instruction issued by TINKLE TELECOM.
- The Customer shall and shall procure that all Users, be authenticated and that they shall be provided with a unique username and password in order to access any part of the Services.
- The Customer shall not itself or knowingly permit any User to use the TINKLE TELECOM Network or Services to do any of the following (a “Prohibited Activity”):
- publish, post, distribute or disseminate defamatory, infringing, obscene, indecent or other unlawful material or information;
- threaten, harass, stalk, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
- engage in illegal or unlawful activities through the TINKLE TELECOM Network;
- knowingly make available or upload files that contain software or other material, data or information not owned by or licensed to the Customer or a User;
- knowingly make available or upload files that contain a virus or corrupt data;
- falsify the true ownership of software or other material or information contained in a file that the Customer or any User makes available via the TINKLE TELECOM Network;
- “spam” or otherwise deliberately abuse any part of the TINKLE TELECOM Network;
- breach the rights of third parties;
- obtain access, through whatever means, to notified restricted areas of TINKLE TELECOM Network; or
- act in a manner which restricts or inhibits any other user from using or enjoying TINKLE TELECOM’s or a Service Provider’s products or services.
- If the Customer becomes aware that any User is using the TINKLE TELECOM Network to perform any of the Prohibited Activities the Customer shall, as reasonably appropriate, enforce the applicable terms in its agreement with its User(s) and shall use all reasonable endeavours to stop (or prevent a repetition of) such User.
- If TINKLE TELECOM becomes aware that a User is performing any of the Prohibited Activities, TINKLE TELECOM shall bring the breach to the attention of the Customer in writing. If TINKLE TELECOM have not received, within one (1) Business Days of dispatch of such a message, a satisfactory response from the Customer detailing the actions that have been taken to stop a User performing any Prohibited Activity or to prevent the repetition of a Prohibited Activity, which actions may, depending on the circumstances and if reasonable and appropriate to do so, include restricting the access of the User to the TINKLE TELECOM Network or disconnecting the User from the TINKLE TELECOM Network, then TINKLE TELECOM shall have the right to restrict the access of and/or disconnect the User(s) in question from the TINKLE TELECOM Network. If TINKLE TELECOM exercises its rights to disconnect a User it will notify the Customer as soon as reasonably practicable. Provided that if the Prohibited Activity in TINKLE TELECOM’s reasonable opinion is serious, (including where it has a direct or indirect impact on the experience of other Customers of TINKLE TELECOM), TINKLE TELECOM may suspend the provision of the services immediately in relation to the User until such time as the Prohibited Activities have ceased.
- Each Party shall provide the other with all reasonably necessary co-operation, information and support to prevent and/or stop any misuse of TINKLE TELECOM Network by Users.
- The Customer may resell the Services to its Users and shall be entitled to permit its direct Users to resell the Services to other Users.
- Any agreement between the Customer and a User or between a User and another User will be a separate arrangement between those parties and TINKLE TELECOM will not be a party to it. The Users shall have no rights under this Agreement or any Service Schedule.
- The Customer acknowledges that TINKLE TELECOM is acting as a wholesale partner of each Service Provider and not as the agent of any Service Provider.
- The Customer shall be responsible for any dealings with Users concerning the Services and shall not direct its Users to contact any Service Provider or TINKLE TELECOM unless otherwise agreed in writing.
- In order for TINKLE TELECOM to meet its legal obligations to comply with any request by any government, enforcement or regulatory agency (Information Request) the Customer shall keep and maintain suitable records of all Users and details of all current agreements entered into between them.
- The Customer shall (and shall procure that the User shall) ensure that its marketing literature accurately reflects and promotes the Services. At the written request of TINKLE TELECOM, the Customer shall (or shall use its reasonable endeavours to procure that Users engaged in the re-sale of the Services will) provide TINKLE TELECOM with copies of any marketing literature used by the Users in relation the resale of the Services.
- The Customer shall:
- co-operate and use all reasonable endeavours to procure that all Users co-operate with all reasonable written requests and instructions of TINKLE TELECOM relating to the Services;
- ensure that they check and reconcile their monthly invoices so as to confirm the accuracy of the invoice, the services provided and notify TINKLE TELECOM of incorrect items within sixty (60) days of receipt of the invoice.
- provide, for TINKLE TELECOM, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Customer’s or (so far as the Customer is able) any User’s premises, office accommodation, data and other facilities as reasonably requested by TINKLE TELECOM provided that such persons adhere at all times with all information communicated to them pursuant to clause 8.13.4;
- provide, in a timely manner, such information as TINKLE TELECOM may reasonably request (which is relevant to the Customer’s and/or its Users receipt and use of the Services;
- inform TINKLE TELECOM of all Health and Safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s and any User’s premises and provide TINKLE TELECOM and Service Providers who are given access to Customer’s and/or User’s premises with a suitable and safe working environment;
- ensure that all Customer’s and any User’s equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant UK standards or requirements;
- obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the use of Equipment insofar as such licences, consents and legislation relate to the Customer’s business and premises in all cases before the date on which the Services are to start;
- comply and use its reasonable endeavours to procure that its Users comply with the Acceptable Use Policy as may be updated by TINKLE TELECOM notifying the Customer in writing from time to time (which for these purposes shall include notification by email to the Customer’s General Counsel.
- The Customer shall not and shall use all reasonable endeavours to procure that its Users shall not:
- purport to act on behalf of or represent any Service Provider; and
- except with TINKLE TELECOM’s prior written consent, refer to any Service Provider in any marketing or service literature.
- The Customer acknowledges that it is solely responsible for providing the Customer Information and that TINKLE TELECOM shall rely on the Customer Information in determining and selecting the appropriate Services.
- TINKLE TELECOM shall be entitled to rely upon any written specification or written advice given by the Customer (its employees, directors, agents and sub-contractors) to TINKLE TELECOM in relation to the suitability of the Services for meeting the Customer’s requirements. To the extent that the Services comply with such written specification and or such written advice TINKLE TELECOM shall be deemed to have supplied the same in accordance with the relevant Service Schedule, without limitation, notwithstanding the Customer Information.
- TINKLE TELECOM does not warrant that the Services will be uninterrupted or error free.
- Suspension of the Service
- TINKLE TELECOM may suspend or block the Customer’s (or any User’s) access to the Service in any of the following circumstances:
- if TINKLE TELECOM or any third party providing equipment or services to TINKLE TELECOM in connection with the provision of the Services is required to so do in order to comply with any law, regulation, court order, or request, order, direction, determination or consent by or of a governmental or regulatory body or authority;
- where a Service is no longer provided by the applicable Service Provider and the same has been notified by TINKLE TELECOM to the Customer at least 30 days prior to the date of suspension and notwithstanding such notice, the Customer has not contracted with TINKLE TELECOM for an alternative service or served 14 days’ notice to terminate the Service the subject of the suspension;
- If TINKLE TELECOM or any third party providing equipment or services to TINKLE TELECOM in connection with the provision of the services requires to carry out any emergency maintenance or repair, which will include any necessary action to prevent interference with, damage to or degradation of the TINKLE TELECOM Network where possible TINKLE TELECOM will give the Customer a minimum of 24 hours advance notice of such emergency maintenance or repair;
- to carry out planned maintenance or upgrade of the TINKLE TELECOM Network or the Services in which TINKLE TELECOM will provide not less than 24 hours prior notice of the suspension and, where practicable, will agree with the Customer when the Services will be suspended and for how long;
- if the Customer fails to comply with any of its obligations set out in this Agreement and/or any Services Agreement which directly prevents TINKLE TELECOM from delivering the Services;
- If the Customer fails to pay any undisputed sum by the due date;
- if the Customer exceeds any credit limit agreed with TINKLE TELECOM and does not remedy the situation within 7 days of receiving a written notice to do so;
- if TINKLE TELECOM is required to eliminate a hazardous condition (including an event which represents a health and safety risk for TINKLE TELECOM, its employees, agents, directors and sub-contractors)
- TINKLE TELECOM will restore suspended Services as soon a reasonably practicable after the cause of the suspension has been rectified and/or has ceased to exist. In the event of any suspension pursuant to clauses 9.1.3, or 9.1.4 (and where the issue giving rise to the suspension has not been caused by and/or arisen from an act or omission of the Customer or a User) TINKLE TELECOM will use all reasonable endeavours to limit the amount of time for which the Services are suspended.
- If the suspension of Services arises out of, or in connection with, an act or omission of the Customer or a User then the Customer will pay to TINKLE TELECOM all reasonable costs that TINKLE TELECOM incurs in reconnecting the Services.
- TINKLE TELECOM shall not be liable to the Customer for any charges incurred by the Customer for the use of other telecommunications services whether provided by TINKLE TELECOM or any other person during any period of unavailability resulting from suspension of the Services by TINKLE TELECOM in accordance with clause 9.
- TINKLE TELECOM may suspend or block the Customer’s (or any User’s) access to the Service in any of the following circumstances:
- Maintenance
- TINKLE TELECOM shall consult with the Customer, as appropriate in the circumstances, by means of E-mail as to the time periods for conducting routine maintenance or upgrading works to the Equipment and/or the TINKLE TELECOM Network. TINKLE TELECOM shall use its reasonable endeavours to carry out such routine maintenance or upgrading during such times as the traffic over the TINKLE TELECOM Network is at its lowest, at times agreed with the Customer (where possible) and in any event within the hours committed to in the applicable Services Agreement.
- TINKLE TELECOM shall be free to carry out emergency or urgent maintenance to the Equipment and/or the TINKLE TELECOM Network at any time to ensure the Services continue to be supplied. TINKLE TELECOM shall provide the Customer with as much prior written notice as reasonable possible, the likely impact of the works on the Service(s), the anticipate duration of any impact of the Services and wherever reasonably possible, any emergency or urgent maintenance shall be carried out during such times as the Customer’s traffic over the TINKLE TELECOM Network is at its lowest. TINKLE TELECOM shall use its reasonable endeavours to ensure that disruption to the Service(s) is kept to an absolute minimum.
- Intellectual Property Rights
- All Intellectual Property Rights in the Services shall be owned by TINKLE TELECOM or TINKLE TELECOM’s related companies and Service Providers save to the extent that any of the same contain Intellectual Property Rights owned by third parties.
- TINKLE TELECOM grants to the Customer a non-exclusive, royalty free, licence to use and to sub-license to the Users TINKLE TELECOM’s Intellectual Property Rights in the Services, strictly for the purpose of receiving the Service(s) in accordance with the provisions of the Service Schedule.
- The Customer hereby acknowledges that it has no right, title or interest in the Trade Names and it is only a licensee of the Trade Names in accordance with the terms of the Agreement.
- Subject to the terms of the Agreement TINKLE TELECOM may grant the Customer a non-exclusive licence to use the Trade Names to promote the Services, provided always that the Customer may not use the Trade Names without TINKLE TELECOM’S prior written consent and shall comply with such written instructions or directions as may be given by TINKLE TELECOM from time to time as to the manner and context in which the Trade Name may be used by the Customer.
- The Customer shall take such action and execute such documents in relation to any of the Trade Names as TINKLE TELECOM may reasonably direct from time to time, including (but not limited to) entering into registered user agreements with TINKLE TELECOM if requested by TINKLE TELECOM provided always that such agreements shall be consistent with these terms and conditions, including but not limited to condition 11.2.
- TINKLE TELECOM warrants that it has the right to license the use of the Trade Names and the Intellectual Property Rights to the Customer in accordance with the terms of the Agreement.
- Indemnities
- The Customer shall fully indemnify and hold harmless TINKLE TELECOM and keep it fully indemnified at all times against all Losses arising from or in connection with any use or misuse of the Service by the Customer or Users in breach of clause 8.3.
- It shall be a condition precedent of any indemnity given under the Agreement that TINKLE TELECOM shall:
- advise the Customer in writing of any Losses as soon as is reasonably practicable;
- provide the Customer with all reasonable assistance and authority to defend or settle any claims or proceedings;
- make no admission relation to such claims or legal proceedings without the agreement of the Customer, which shall not be unreasonably withheld; and
- consult actively with the Customer regarding the conduct of any action and have due regard to the Customer’s representations, and not agree any settlement of such claims or legal proceedings nor make any payment on account of them without the prior written agreement of the Customer, which shall not be unreasonably withheld or delayed.
- Limitation of Liability
- TINKLE TELECOM and the Customer agree that if the Customer or TINKLE TELECOM has reason to believe that it may have a cause of action hereunder, the parties shall liaise in an open and co-operative way with a view to rectifying the reason for such cause of action whenever practicable.
- Save to the extent that TINKLE TELECOM has a corresponding claim against any third party and/or Service Provider in the form of service credits and TINKLE TELECOM receives such service credits, TINKLE TELECOM shall not be liable (and Service Credits will not accrue) for any failure or delay in performing any of its obligations under the Agreement that arises out of, or in connection with, any of the following:-
(i) a fault in, or any other problem associated with, electricity or other power source supplied by the Customer or a User, any equipment other than Equipment or other telecommunications systems which (i) are not operated by TINKLE TELECOM and/or (ii) are operated by any Service Provider;
(ii) any failures of any third parties to provide equipment, software, materials or information required to produce the Services;
(iii) any fault arising outside the TINKLE TELECOM Network, except to the extent of a reasonable proportion (which relates directly to the affected Services of the Customer) of any compensation TINKLE TELECOM receives from the third party directly the cause of such fault;
(iv) a fault (including any failure to perform its obligations under the Agreement, or in the case of a Service Provider under any other relevant agreement or order) or the negligence of the Customer or any third party that is not within the direct control of TINKLE TELECOM;
(v) any suspension of the Services in accordance with the provisions of the Agreement;
(vi) any act or omission of the Customer which is relative to its obligations under the Agreement and/or any Services Agreement
(vii) down time of the computer systems caused by suppliers of third party computer services provided that (and to the extent that) the same is not due to any act, omission or default of TINKLE TELECOM, its employees, agents or sub-contractors; or
(viii) any other circumstances caused by event for which TINKLE TELECOM is not liable in accordance with the provisions of the Agreement and/or any Services Agreement. - Notwithstanding any other provision under the Agreement, a Services Agreement or otherwise neither Party seeks to limit or exclude liability for:
- death or personal injury resulting from its own or its employees’, agents’ or sub-contractors’ negligence; and/or
- any breach of its obligations implied by Section 12 of the Sale of Goods and Services Act 1979 or Section 2 of the Supply of Goods and Services Act 1982;
- in relation to any fraudulent misrepresentation or fraudulent acts of its employees shall not be limited;
- any wrongful or unlawful termination of the Agreement and/or any Services Agreement; and/or
- in relation to any liability arising under clause 16.5, clause 17 or clause 18.
- Subject to clause 13.3 above neither Party (whether under this Agreement, a Services Agreement or otherwise) shall be liable to the other in respect of:
- loss of profits; or
- loss of business; or
- depletion of goodwill and/or similar losses; or
- loss of anticipated savings; or
- loss or corruption of data or information; or
- any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses (including loss or damage suffered by the party as a result of an action brought by a third party) even if such loss was reasonably foreseeable or a party has been advised of the other party incurring the same. For the avoidance of doubt, nothing in this clause 13.4 or otherwise in the Agreement and/or any Service Schedule seeks to or has the effect of limiting or excluding the liability of the Customer to pay the Charges due to TINKLE TELECOM.
- Subject to clauses 13.3, and 13.4 the entire liability of a Party arising out of or in connection with this Agreement whether arising from contract, tort, negligence or otherwise shall be limited in each Year to £100,000 (one hundred thousand pounds sterling). Any payment of the Charges by the Customer shall not be taken into account when calculating whether the Customer’s cap on liability has been reached.
- Subject to clauses 13.2, 13.3 and 15.3.2, the Service Credits shall be the Customer’s sole and exclusive right and remedy for any failure by TINKLE TELECOM to comply with the applicable Service Levels.
- Subject to clause 13.3, except as expressly set forth in the Agreement and any Services Agreement all conditions, warranties, representations, undertakings or agreements, with respect to the provision of the Services or otherwise, whether oral or in writing and whether express or implied, either by operation of law, statutory or otherwise (including any concerning the fitness of the Services or any part thereof for a particular purpose), are hereby expressly excluded to the maximum extent permitted by law.
- Force Majeure
Neither Party will be liable for any breach of the Agreement and/or any Services Agreement due to any cause beyond that party’s reasonable control including, but not limited to Act of God; insurrection or civil disorder; war or military operations; national or local emergency; act or omission of Government, fire, explosion, flood or the act or omission of any party for whom the party affected is not responsible and which is beyond the affected party’s reasonable control (including other telecommunications service providers). The affected party will use all reasonable endeavours to bring the event to an end or find a solution by which the Agreement and any affected Services Agreement may be performed despite the event. If the affected party is prevented from performing its obligations for a continuous period in excess of fourteen (14) days either Party may terminate the Agreement and any affected Services Agreement immediately by serving written notice on the other Party, in which case neither party has any liability to the other except as regards rights and liabilities which have already accrued which will continue to subsist or are expressed to continue beyond the termination of the Agreement and/or any Services Agreement (as applicable).
- Termination
- Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, the Agreement may be terminated by either Party on seven (7) days written notice to the other, such notice not to take effect any earlier than the expiry of the Initial Term.
- Without prejudice to any rights or remedies that have accrued under this Agreement or a Services Schedule, a Services Schedule may be terminated by either Party on seven (7) days’ prior written notice to the other, such notice not to take effect any earlier than the expiry of Initial Term of this Agreement. In the event that the Customer terminates a Services Schedule earlier than the expiry of a Service Minimum Period relating to an individual service the Customer shall pay any applicable early termination charges in respect of such individual service(s) payable in accordance with clause 16.3.2 or as otherwise set out in a Service Schedule.
- Notwithstanding any other rights under this Agreement and/or any Service Schedule, either Party may terminate this Agreement and/or any Service Schedule immediately if:
- the other Party is the subject of an Insolvency Event; or
- if either Party commits a material breach or other persistent breach of this Agreement and/or any Service Schedule which in the case of a breach capable of being remedied, is not remedied within thirty (30) days of a written request by the other Party to remedy the same.
- TINKLE TELECOM may immediately terminate or suspend:
- the provision of Services to the Customer, if Ofcom or Phonepay Plus determine, or TINKLE TELECOM reasonably considers, that use of the Services by the Customer (excluding use by a User) (i) does not constitute Appropriate Use (ii) is in breach or may be in breach of the Code or any other relevant statutory or regulatory act, regulation, code or similar (iii) is fraudulent or illegal or may be fraudulent or illegal;
- the provision of Services to a User, if Ofcom or Phonepay Plus determine, or TINKLE TELECOM reasonably considers, that use of the Services by the User (i) does not constitute Appropriate Use (ii) is in breach or may be in breach of the Code or any other relevant statutory or regulatory act, regulation, code or similar (iii) is fraudulent or illegal or may be fraudulent or illegal; or
- all or any part of this Agreement or any Service Schedule if Ofcom or any other authority of competent jurisdiction revokes the supplier’s authorisation as Public Electronic Communications Network under the Act and as a result TINKLE TELECOM can no longer legally comply with its material obligations under the Agreement and any Service Schedule.
- Either party may terminate an Order for Services placed under a Service Schedule in respect of any User at any time before the Go Live Date. If the Customer terminates an Order for Services pursuant to this clause and it is not due to an act or omission of TINKLE TELECOM or any of its employees, agents or subcontractors then the Customer shall pay TINKLE TELECOM its costs incurred in connection with the cancelled Orders.
- Without prejudice to any other rights arising under this Agreement or otherwise, TINKLE TELECOM shall be entitled to terminate this Agreement and/or any Services Agreement (without liability to the Customer) by 14 days’ written notice to the Customer if the Customer is in breach of its obligation to pay any charges when they fall due in accordance with this Agreement and/or any Services Schedule (save where the Customer fully remedies such late payment (including without limitation any interest which has accrued thereon pursuant to clause 7.4.2) prior to the expiry of the 14 day notice period).
- Consequences of Termination
- On termination of any Service Schedule for whatever reason the Customer shall cease to use the Services (which were provided thereunder) and ensure that all Users cease to use any of the Services (which were provided thereunder).
- Save where the Agreement and/or any Services Agreement has been terminated by TINKLE TELECOM in accordance with clause 15.3 or 15.6 or where TINKLE TELECOM is entitled to terminate the Agreement and/or any Services Agreement in accordance with clause 15.3 or 15.6:
- both Parties shall co-operate and do such acts and things as may be reasonably necessary to facilitate the provision of Service(s) by an alternative provider and to ensure the provision of Services to Users remain uninterrupted provided that the Customer shall reimburse all reasonable costs incurred by TINKLE TELECOM and the Parties shall negotiate in good faith any further transitional arrangements necessary ensuring the minimal disruption to existing Users.
- Upon the termination of this Agreement or Service Schedule by TINKLE TELECOM under clause 15.3.1 and/or clause 15.6, all amounts payable to TINKLE TELECOM shall become immediately due and payable:
- all Charges outstanding at the date of termination; and
- where the Customer requests (pursuant to clause 15.2) that the Services Agreement terminates earlier than the expiry of the Service Minimum Period for any individual Services (as defined in the relevant Service Schedule) the Customer shall pay a cancellation charge for each individual Service cancelled prior to the expiry of the applicable Service Minimum Period that is equal to the lesser of:
(a) any early termination charges or ongoing charges which TINKLE TELECOM’s incurs with its applicable Service Provider/s due to any Service Minimum Period being terminated prior to its full term and which it cannot reasonably mitigate plus a reasonable sum to reflect the profit that TINKLE TELECOM would have earned had the Service Minimum Period been in force for its full term; and
(b) 80% of the Charges which would have been payable for each Service from the date of termination to the end of the relevant Service Minimum Period, had it been in force for its full term.
- Where the Agreement terminates prior to the termination of any Services Schedule:
- the provisions of the Agreement shall survive to the extent necessary to give effect to the applicable Services Schedule until its termination; but
- no further Orders will be accepted by TINKLE TELECOM and no additional Services Schedules may be entered into by the Parties.
- Any provisions which are either expressly or impliedly intended to survive termination of the Agreement and/or any Services Agreement shall as intended survive such termination, including without limitation this clause 16.
- Confidential Information
- Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party; or
- was in the other party’s lawful possession before the disclosure; or
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement and/or any Services Agreement.
- Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement and/or any Services Agreement.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- The obligations of confidentiality set out in this clause will remain in full force and effect despite termination of this Agreement and/or any Service Schedule for a period of two (2) years.
- Each Party warrants to the other that it has obtained and will keep in force all requisite registrations under the Data Protection Act 1998 (the “Data Protection Act”) throughout the Term of this Agreement and/or any Service Schedule and will comply at all times with the provisions of the Data Protection Act and each Party agrees to indemnify defend and hold harmless the other Party against all claims, liabilities, losses and costs (including reasonable and properly incurred legal costs) arising directly in connection with the breach of this clause except where such claims, liabilities, losses and costs arise from negligence or breach of this Agreement and/or any Service Schedule by the party seeking to rely on the indemnity in this clause 17.6.
- Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
- Assignment
- Subject to clause 19.2, neither party shall without the prior written consent of the other (which cannot be unreasonably conditioned, withheld or delayed) assign, transfer, charge or deal in any way with this Agreement and/or any Services Agreement or any of its rights under it, or purport to do any of these things, nor sub-contract any or all of its obligations under this Agreement and/or any Services Agreement to any party.
- TINKLE TELECOM may sub-contract all or any part of the Services to a third party without the consent of the Customer, providing that TINKLE TELECOM remains liable (subject always to the limitations and exclusions of liability contained in this Agreement) for the acts and omissions of its sub-contractors.
- Escalation and Dispute Resolution
- If a dispute arises out of or in connection with the Agreement and/or any Services Agreement or the performance, validity or enforceability of them (Dispute) then, except as expressly provided in this Agreement, the parties shall follow the dispute escalation procedure set out on the TINKLE TELECOM website.
- Compliance with clause 12.1 shall not prevent the parties commencing or continuing court proceedings or referring the Dispute to Ofcom in accordance with any right (if any) either party may have to request a determination or other steps for its resolution.
- Variations
No variation of this Agreement and/or any Services Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Parties.
- Entire Agreement
- This Agreement and any Services Schedules constitutes the entire complete and only agreement between the Parties in relation to its subject matter, and replaces and extinguishes all prior agreements, undertakings, arrangements, understandings or statements of any nature made by the Parties, whether oral or written, with respect to such subject matter.
- Each Party acknowledges that it has not relied on any statements, warranties or representations, understandings or agreements (whether written or oral) given or made by or on behalf of any other Party under or in connection with this Agreement and/or any Services Schedule other than those expressly set out or referred to in the Agreement. Each Party further acknowledges that it shall have no rights or remedies with respect to such subject matter other than under this Agreement and any Service Schedule.
- The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Agreement or for any breach of any representation not contained in the Agreement (unless such misrepresentation or representation was made fraudulently).
- Notices
Unless provided otherwise in this Agreement and/or any Services Agreement, any notice or other communication to be given under this Agreement and/or any Services Agreement (“Notice”) shall be in writing (which for this purpose includes email), signed by or on behalf of the Party giving it and may be served by sending it by fax, delivering it by hand or sending it by a recorded postal delivery service to the address and for the attention of the relevant Party using their last known address stated within the control panel:
For TINKLE TELECOM:
For the attention of: Accounts Department
Address: CARLTON HOUSE, 3-5 ALMA ROAD, HEADINGLEY, LEEDS, LS6 2AH
Email address: SALES@TINKLETELECOM.COM
- Any Notice shall be deemed to have been served:
- if delivered by hand, at the time and date of delivery;
- if sent by fax, on receipt of report of successful transmission; and
- if sent by post, at the expiration of 3 Business Days after the envelope containing the same was delivered into the custody of the postal authorities, provided that where, in the case of delivery by hand or fax, such delivery or transmission occurs after 6pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9am on the next following Business Day;
- If sent by email, on receipt of a reply within 1 working day.
- Waiver
No waiver by either Party of any breach of any provision of this Agreement and/or any Services Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
- Severance
If any provision of this Agreement and/or any Services Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement or a Services Agreement and the remainder of the provision in question shall not be affected.
- Governing Law and Jurisdiction
- This Agreement, all Services Agreements and any dispute or claim arising out of or in connection with its or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.
- The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement and/or any Services Agreement or its or their subject matter or formation (including non-contractual disputes or claims).
- For the avoidance of doubt, clause 25.2 shall not prevent a party bringing enforcement proceedings of a judgment obtained in England in any jurisdiction.
- Third Party Rights
- Any person who is not a party to this Agreement and/or any Services Agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999; and
- Counterparts
- This Agreement and any Services Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement or a Services Schedule (as applicable), but all the counterparts shall together constitute the same agreement.
- Anti-Bribery
- The Customer shall, and shall procure that its staff, employees, agents and any other persons who perform its obligations under the Agreement (or otherwise carries out activities in relation to it) for and on behalf of it in connection with the Agreement shall:
- comply with all applicable statutes, statutory instruments, bye-laws, orders, directives, treaties, decrees an laws which relate to the anti-bribery and/or anti-corruption, including the Bribery Act 2010 (Anti-Bribery Laws);
- not offer, promise, give, request, agree to receive, receive or accept a bribe or financial or other advantage or commit any corrupt act;
- have and shall maintain in place throughout the term of the agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Anti-Bribery Laws and the Relevant Policies, and will enforce them where appropriate;
- not do or omit to do any act or thing which constitutes or may constitute an offence under Anti-Bribery Laws;
- not do or omit to do any act or thing which causes or may cause TINKLE TELECOM to be in breach of and/or commit an offence under any Anti-Bribery Laws;
- without prejudice to Clause 29, not do or omit to do any act or thing which causes or may cause TINKLE TELECOM to be guilty of an offence under section 7 Bribery Act 2010 (or would or may do so if TINKLE TELECOM was unable to prove that it had in place adequate procedures designed to prevent persons associated with it from undertaking such conduct); and
- provide TINKLE TELECOM (at the Customer’s cost) with such reasonable assistance as it may require from time to time to enable it to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with any Anti- Bribery Laws.
- The Customer shall:
- promptly report to TINKLE TELECOM any request or demand for any financial or other advantage of any kind received in connection with the performance of the agreement by it or by its employees, agents or any other person who performs the Agreement (or otherwise carries out activities in relation to it) for or on behalf of it in connection with the agreement; and
- upon request, certify in writing that the Customer has complied with all of its obligations under this Clause 28. The Customer shall provide such supporting evidence of compliance as TINKLE TELECOM may reasonably request.
- The Customer warrants to TINKLE TELECOM that it has not, and its staff, employees, agents and any other persons who perform the Agreement (or otherwise carries out activities in relation to it) for or on behalf of it in connection with the Agreement have not breached any applicable Anti-Bribery Laws; been convicted of any offence involving bribery, corruption, fraud or dishonesty; offered, promised, given, requested, agreed to receive, received or accepted a bribe or financial or other advantage or committed any corrupt act; done or omitted to do any act or thing which constitutes or may constitute an offence under the Anti-Bribery Laws; done or omitted to do any act or thing which caused or may cause any person to be in breach of and/or commit an offence under any Anti-Bribery Law; done or omitted to do any act or thing which caused or may cause any person to be guilty of an offence under section 7 Bribery Act 2010; or given any financial or other advantage, inducement or reward to any person in connection with the awarding or continuation in force of this agreement.
- TINKLE TELECOM may terminate this Agreement immediately if the Customer is in breach of any of its obligations under this Clause 28 or if TINKLE TELECOM has reasonable cause to believe that such a breach has occurred or may occur.
- The Customer shall, and shall procure that its staff, employees, agents and any other persons who perform its obligations under the Agreement (or otherwise carries out activities in relation to it) for and on behalf of it in connection with the Agreement shall:
- Agreement & Schedule Amendment
- TINKLE TELECOM reserves the right, at its discretion, to change, modify, add, or remove portions of these terms at any time without prior notification. In addition, when using a particular TINKLE TELECOM service, you and TINKLE TELECOM shall be subject to any posted guidelines or rules applicable to such service which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the terms. TINKLE TELECOM may terminate, change, suspend or discontinue any aspect of the TINKLE TELECOM website, including the availability of any features of the website or TINKLE TELECOM services, at any time. TINKLE TELECOM may also impose limits on certain features and services or restrict your access to parts or the entire website without notice or liability.
- This agreement represents the sole and exclusive agreement between you and TINKLE TELECOM regarding the subject matter of this agreement. The parties may amend this agreement at any time by a written instrument signed by both of them.
TINKLE TELECOM LTD
LEASED LINE SCHEDULE
Last Updated: 4th April 2021
INDEX
- Definitions and Interpretation
- The Service Agreement
- Duration of Services
- Description of Leased Line Services
- Orders for Leased Line Services
- Support Services
- Service Management
- Service Availability and Credits
- Charges Mandated By Service Provider
- Equipment
- Connection of Equipment
- Access and Site Regulations
- Charges
- Use of the Service
- Limitation of Liability
- Termination
- Consequences of Termination
This Addendum relates only to our leased line products. They do not relate to any other product or service supplied by TINKLE TELECOM unless specified herein.
- Definitions and Interpretation
In this Service Agreement, the following expressions shall have the following meanings unless the context otherwise requires:
“Billing Period” | means 1 month periods of time for the billing of Rental and other Charges under this Agreement or any Contract to the Client; |
“Business Days” | any day which is not a Saturday, a Sunday or a bank or public holiday in England; |
“Charges” | means the charges for the installation and use of Leased Line Services together with any charges for additional services and equipment due by the Client to TINKLE TELECOM in terms of the Services Agreement; |
“Circuit” | means a Leased Line circuit whether for the provision of Internet Leased Line Services or Point to Point Leased Line Services; |
“Client Provided Apparatus” | means any apparatus at the Sites (not being Services Equipment) provided and used by the Client and/or a User in order to use the Services; |
“Client” | means the Party identified in Schedule 1 of this Agreement; |
“EFM” | means Ethernet in the First Mile i.e. using Ethernet protocols up to the customer premises. |
“EoFTTC” | Means Ethernet over Fibre to the Cabinet utilising a hybrid of copper and fibre. A phone line is supplied as part of this circuit. EoFTTC is the name TalkTalk apply to this service. |
“GEA” | GEA is the name BT Wholesale apply to the EoFTTC product. A phone line needs to be present in order to install this service. |
“Go Live Date” | means the date on which TINKLE TELECOM notifies the Client or any User that the Service or part thereof are ready for use or, if earlier, the date on which the Client or any User first makes use of the Service of part thereof; |
“Help Desk” | the telephone helpdesk described in Clause 7.1; |
“Incident Report” | notification of an Incident which is raised by TINKLE TELECOM or by the Client; |
“Incident” | a failure of the Service to operate in accordance with its published specification; |
“Installation Charges” | means the charges payable for installation of Services Equipment and for the commissioning and configuration of Services, as specified in the Order or as subsequently varied in accordance with the terms of this Agreement; |
“Leased Line” | means a circuit provided by TINKLE TELECOM as described in clause 5; |
“Normal Business Hours” | the hours between 09:00 and 17:30 on Business Days; |
“Operations Manual” | the TINKLE TELECOM operations manual applicable to the Services as may be amended from time to time; |
“Order” | means a request for the provision of Services by the Client which has been accepted by TINKLE TELECOM in accordance with Clause 6 of this Agreement; |
“Priority Level” | the priority levels specified in the table set out at Clause 8.4.1; |
“Protected Circuit” | means a Circuit the local tail of which is protected fibre; |
“Rental” | means the rental payable by the Client to TINKLE TELECOM for the provision of Services and the Services Equipment as specified in the Order or as increased or decreased by TINKLE TELECOM in accordance with the terms of any Contract; |
“Service Credits” | means reductions in certain charges or compensation payments in respect of TINKLE TELECOM failing to meet specified Service Levels, calculated in the manner set out in this Agreement; |
“Service Provider” | means any third party who from whom TINKLE TELECOM procures services in order to provide the Services under this Agreement; |
“Services Equipment” | means any apparatus, equipment and cabling provided by TINKLE TELECOM at a Site as an essential part of providing Services under the terms of this Agreement; |
“Services” | means the supply of 1st and 2nd line broadband technical helpdesk Services provided by TINKLE TELECOM to the Client as specified in the Order and “Service” shall have a corresponding meaning; |
“Site” | means the premises or other locations from and to which Services are to be provided to the Client as specified in the Order; |
“Support Service” | the support services described in clause 7; |
“Target Go Live Date” | means the target date agreed between TINKLE TELECOM and the Client for the commencement of Services as set out in an Order or as subsequently revised by the Client in accordance with the terms of this Agreement; |
“the Act” | means the Communications Act 2003; |
“the Code” | means any Code of Practice relevant to the Services issued by PhonepayPlus or Ofcom as amended from time to time; |
“this Agreement” | means this Service Agreement and its Schedules and any Order; |
“Unavailable Time” | means a period of time when there is a total break in transmission. |
“Unprotected Circuit” | means a Circuit the local tail of which is unprotected copper or fibre; |
- The Condition and Schedule headings are for convenience only and shall not affect the interpretation of this Agreement.
- References to the singular include the plural and vice versa, and references to one gender include the other gender.
- Any phrase introduced by the expressions “includes”, “including” or “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- Any reference to a statute, statutory provision or subordinate legislation (together “legislation”) shall (except where the context otherwise requires) (i) be deemed to include any bye-laws, licences, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under that legislation and (iii) shall be construed as referring to any legislation which replaces, re-enacts, amends or consolidates such legislation (with or without modification) at any time.
- Unless specifically provided to the contrary all notices under this Agreement shall be in writing.
- References to times are to London
- Any reference to an “hour” means an hour in a day and any reference to a “day” means a period of 24 hours running from midnight to midnight.
- Except to the extent that they are inconsistent with the definitions and interpretations in this Agreement or are otherwise defined in this Agreement, the definitions and interpretations in the Master Agreement shall apply to this Agreement.
- The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
- References to Clauses and Schedules are to the Clauses and Schedules of this Agreement.
- The Service Agreement
- The terms of the Master Agreement shall apply in relation to the supply of the Services and the terms of this Agreement shall apply between the parties as if the Master Agreement were incorporated into this Agreement.
- Notwithstanding Clause 3.1 the Master Agreement shall remain fully effective and unamended, in relation to the supply of any goods and or services other than the Service.
- Duration of Services
- For the duration of this Agreement TINKLE TELECOM agrees to:
- provide the Client with the Services on the terms of this Agreement;
- exercise the reasonable skill and care of a competent communications provider in providing the Service and if required, in determining how best to provide the Service to a Site;
- use its reasonable endeavours to provide the Service by the Target Go Live Date and in accordance with the service levels set out in this Agreement but all dates are estimates and except as set out in the service guarantee provisions, TINKLE TELECOM has no liability for failure to meet any date;
- It is technically impracticable to provide a fault free Service and TINKLE TELECOM does not undertake to do so. TINKLE TELECOM agrees to repair any faults in accordance with the service standards as set out in this Agreement.
- The Service Minimum Period for Leased Line Services shall be as provided for in the relevant Order.
- For the duration of this Agreement TINKLE TELECOM agrees to:
- Description of Leased Line Services
- Leased Line Services are provided as:
- Internet Leased Line Services – a dedicated, private, fixed capacity circuit delivered from the TINKLE TELECOM Network to the Client Site with Internet connectivity. These Services may share infrastructure with the TINKLE TELECOM Network and/or that of other Service Providers. Internet Leased Line Services are delivered as a Fully Managed Service with an TINKLE TELECOM supplied router, 24/7 remote monitoring and management by TINKLE TELECOM network operations.
- Unmanaged Internet Leased Line Services – a dedicated, private, fixed capacity circuit delivered from the TINKLE TELECOM Network to the Client Site with Internet connectivity. These Services may share infrastructure with the TINKLE TELECOM Network and/or that of other Service Providers. Internet Leased Line Services are delivered to the customers premises, but it is the customers responsibly to supply the termination equipment and to monitor.
- Point-to-Point Leased Line Services– a dedicated, private, fixed capacity circuit delivered point to point between Client nominated sites. Point-to-Point Leased Line Services do not share infrastructure with the TINKLE TELECOM Network and will be delivered as a stand-alone Service which will not be monitored by TINKLE TELECOM .
- Leased Line Services are provided as:
- Orders for Leased Line Services
Orders for Leased Line Services shall be completed according to process set out in this clause.
- Quotations can be generated online via the reseller control panel.
- All quotations made by TINKLE TELECOM shall be deemed to be made subject to the terms and conditions of this Agreement and survey.
- If Excess Construction Charges (ECC) are applicable in order to provide the Services TINKLE TELECOM shall notify the Client in writing of the charges and the reasons for them. The Client shall indicate acceptance of the excess construction charges in writing. 50% of ECC charges will be required to be paid prior to TINKLE TELECOM confirming acceptance to the carrier. If ECC charges are not accepted then the order can be cancelled without penalty.
- If no ECC charges are identified the order will proceed and the ability to cancel free of charge is no longer available.
- The provision of an online Order via the Reseller Control Panel by the Client shall constitute an offer to acquire the Services specified in the Technical Requirements Document subject to (i) confirmation that the Services can be provided and (ii) where excess construction charges are applicable, acceptance of those charges in terms of clause 3.
- No Order shall be binding on TINKLE TELECOM until that Order has been accepted by the TINKLE TELECOM Provisioning Team by notice to the Client.
- Upon acceptance by TINKLE TELECOM the Services shall be provided under the terms of this Agreement.
- A request for the upgrade or downgrade of an existing Service shall not be considered a request for services in terms of this clause 5 but on acceptance by TINKLE TELECOM will be deemed an amendment of the existing Order under which those Services are provided.
- Support Services
- Help Desk Support
During the hours of Service specified in Clause 6.2, TINKLE TELECOM will provide a client service and administration telephone help desk facility (“Help Desk”) for the benefit of the Client. TINKLE TELECOM shall accept calls for English language telephone support in connection with Orders and Faults during the hours of Service specified in Clause 6.2. - Hours of Service
- The Help Desk is available to receive calls for reporting on all Faults via telephone 24 hours a day 7 days a week, including Bank and Public Holidays. Out of hours phone numbers will be provided. During business hours all calls and faults must be reported via the normal support phone number stated on our website. Prior to raising a fault it is expected the customer has followed our standard procedures and have collected the appropriate information before contacting the support desk.
- The support team will aim to deliver proactive updates via email and / or phone, whichever is deemed to be most suitable.
- Scheduled and Emergency Maintenance
- From time to time TINKLE TELECOM may interrupt the Service to maintain, update or enhance software Equipment or other aspects of the Service and/or the TINKLE TELECOM Network (“Maintenance Events”). TINKLE TELECOM will, where possible, give the Client a minimum of 2 Business Days advance notice of such events, and where possible will schedule Maintenance Events so as to cause minimum interruption of the Service. For the avoidance of doubt, it may not be possible to give such notice where interruption to the Service is necessary to deal with Incidents occurring in connection with the Service.
- From time to time TINKLE TELECOM may interrupt the Service to carry out emergency maintenance to the TINKLE TELECOM Network in order to maintain appropriate levels of service quality and to provide where possible minimum impact to the Service.
- The Client shall give all reasonable assistance to TINKLE TELECOM to enable Maintenance Events to commence on the planned date and for them to be completed efficiently.
- Any Maintenance Events which occur during Normal Business Hours, and which were not requested by the Client, shall be considered downtime for the purpose of service availability measurement set out in clause 8.
- Help Desk Support
- Service Management
- Incident Reporting
- TINKLE TELECOM shall supply monitoring and management of Internet Leased Line Services 24 hours a day 7 days a week together with pre-emptive Incident reporting to the Client whenever reasonably possible. In the event that any Incident is experience by the Client that it has not been identified by TINKLE TELECOM , the Client must submit an Incident Report to our support teams by telephone or via email.
- For Point to Point Leased Line and Unmanaged Leased Line Services clause 7.1.1 does not apply and the Client will be responsible for the submission of Incident Reports to TINKLE TELECOM .
- All Incident Reports submitted by the Client must provide a complete description of the Incident and any information reasonably requested by TINKLE TELECOM .
- The support team will require the Client to conduct first line diagnostics with any of its Users where appropriate. First line diagnostic steps can be located within the Support Lounge found within the Reseller Control Panel.
- If the Client reports any Incident via an email outside of Normal Business Hours, the Client must place a follow up call to the out of hours number in order to notify the TINKLE TELECOM engineer of the nature of the Incident.
- Incident Response Timescales
- TINKLE TELECOM shall use best endeavours to assign an Incident to an appropriate TINKLE TELECOM engineer within 30 minutes of the generation or receipt of a fault for no less than 95% of Incidents properly submitted to TINKLE TELECOM by the Client in accordance with Clause 7.1.
- TINKLE TELECOM shall use best endeavours to make an update on an Incident available to the Client via email within the response times specified in Clause 7.4.1.
- Incident Resolution Targets
TINKLE TELECOM shall use reasonable endeavours to clear Incidents within the time scales specified within the Incident classification matrix set out in Clause 7.4.1. - Incident Classification Matrix
- The Incident classification matrix set out below outlines the description, and target resolution times associated fault types.
- Incident Reporting
Complete Outage | Fibre Break | Severe Packet Loss | Small Packet Loss | ||
BT Wholesale | Fibre | 5 Hours | 5 Hours | 12 Hours | 24 Hours |
EFM | 7 Hours | 7 Hours | 12 Hours | 24 Hours | |
GEA | 7 Hours | 7 Hours | 12 Hours | 24 Hours | |
Wireless | 10 Hours | N/A | 12 Hours | 24 Hours | |
TalkTalk Business | Fibre | 5 Hours | 5 Hours | 12 Hours | 24 Hours |
EFM | 6 Hours | 6 Hours | 12 Hours | 24 Hours | |
EoFTTC | 7 Hours | 7 Hours | 12 Hours | 24 Hours | |
Sky | Fibre | 5 Hours | 5 Hours | 12 Hours | 24 Hours |
Virgin Media | Fibre | 5 hours | 15 Hours | 12 Hours | 24 Hours |
CityFibre | Fibre | 6 Hours | 6 Hours | 12 Hours | 24 Hours |
GPON | 9 Hours | 9 Hours | 12 Hours | 24 Hours | |
Colt | Unprotected | 8 Hours | 8 Hours | 12 Hours | 24 Hours |
Protected | 4 Hours | 4 Hours | 12 Hours | 24 Hours | |
Openreach | Fibre | 5 Hours | 5 Hours | 12 Hours | 24 Hours |
- The Client understands and accepts that it may be necessary to extend the timescales in the Incident classification matrix above due to the complexity of the Incident or where TINKLE TELECOM is dependent on a third party for resolution of the Incident. In such circumstances, TINKLE TELECOM shall use reasonable endeavours to eliminate or reduce the impact of the Incident on the Service by provision of a workaround, with permanent correction to follow.
- Clearance of Incidents
TINKLE TELECOM will clear an Incident reported to TINKLE TELECOM by the Client in accordance with this Agreement and an Incident Report will be considered to have been cleared where either:
- it is corrected by TINKLE TELECOM (including the provision of a temporary fix); or
- TINKLE TELECOM has investigated the Incident and TINKLE TELECOM ’s initial fault diagnostic testing indicates that the Incident is not found and/or is not the fault of TINKLE TELECOM ; and this has been confirmed by TINKLE TELECOM to the Client.
- Escalation Process
TINKLE TELECOM will provide an escalation process where an Incident is understood as a clear request for the support of a higher technical or management level in order to clear the Incident. If the Incident is considered to be not progressing in a satisfactory manner or if it is foreseen that the targeted time to repair will not be met, either Party may escalate the Incident.
- Service Availability and Credits
- Overall Service Availability
- TINKLE TELECOM aims to provide the Service with a target of 100% availability at all times, subject to the terms of this Agreement.
- If there is an Outage, based on TINKLE TELECOM ’s data, TINKLE TELECOM will apply a reduction to the Customer’s rental charge for the Service as follows, provided the Customer reports the Outage and claims for a reduction to the rental charge in accordance with 8.1:
a) where the Outage Period is greater than the limits set in 7.4.1, TINKLE TELECOM will apply a credit equivalent to one (1) day’s rental charge per hour of downtime for that Service in excess of the target. For the purpose of calculating the Outage Period, a fraction of one (1) hour will be rounded-up to the nearest hour;
b) where the Customer has taken a TINKLE TELECOM Resilient option and experiences an Outage, TINKLE TELECOM , in accordance with this paragraph, will apply a reduction to the rental charges of both the primary and secondary links.
- For the purposes of this clause 8.1, overall service availability excludes:
a) scheduled Maintenance Events as described in clause 6.3;
b) Client-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by TINKLE TELECOM to provide the Service); or
c) outages or disruptions attributable in whole or in part to force majeure events;
- Limit on compensation
- Any Service Credits due to the Client shall be the Client’s sole and exclusive remedy with respect to such failures and shall be in lieu of any other remedy which the Client may have at law.
- The maximum compensation for Unavailable Time the Client can receive in any month is an amount equal to 100% of the Rental due in respect of that Service for the month in which the failure(s) occur and the maximum compensation in aggregate the Client can receive is an amount equal to 25% of the annual rental for the period covered by a 12 months cycle, the first such cycle starting on the Go Live Date.
- How TINKLE TELECOM will pay Service Credits
- Any compensation payable under 7.4.1 above will be credited on the Client’s invoice for Rental for the following Billing Period.
- Exclusions from service availability and service credits
The service levels, service guarantees and any Service Credits will not apply if:
- the failure by TINKLE TELECOM is due to the Client’s own network or equipment or any other network or equipment outside the TINKLE TELECOM Network; or
- the Client is in breach of any part of this Agreement or TINKLE TELECOM suspends the Service or any part of it in accordance with this Agreement; or
- through no fault of its own or because of circumstances beyond its reasonable control, TINKLE TELECOM is unable to carry out any necessary work at, or gain access to the Client’s Site and/or an End User’s Site or the Client fails to agree an appointment date or work is aborted; or
- the Client and TINKLE TELECOM agree a different timescale for performance of the Service, but will apply to any new Target Go Live Date agreed, provided that the new date is after any previous Target Go Live Date(s);or
- reasonable assistance is required or information is reasonably requested by TINKLE TELECOM or a Service Provider from the Client, End User or a third party and such assistance or information is not provided; or
- through no fault of its own, TINKLE TELECOM is unable to obtain any necessary permissions or consents required in connection with the performance of a particular service level; or
- the failure is due to a Force Majeure event; or
- the failure is due to a scheduled Service outage; or
- the failure is due to an inaccurate Order being submitted by the Client; or
- the fault is not reported in accordance with clause 8.1 for Point to Point and Unmanaged Leased Line Services.
- Network Performance
- TINKLE TELECOM Packet Success Service Level Guarantee
TINKLE TELECOM ‘s packet success goal is based on the successful delivery of packets through the TINKLE TELECOM IP network. Unsuccessful packets are deemed to be those dropped due to transmission errors or router overload.
a) TINKLE TELECOM ‘s packet success Service Level Guarantee (“Guarantee”) is successful delivery of packets will meet or exceed 99% between TINKLE TELECOM -designated IP backbone paths for Leased Line Services.
b) The measurement consists of 50 100-byte pings sent every 15 minutes. A daily average will be calculated using these 96 samples. The daily measurements will be averaged to calculate a monthly average.
c) Should TINKLE TELECOM fail to meet the Guarantee in two consecutive calendar months, the Client is entitled to a one (1) day prorated credit of the Rental for the second month and an additional one (1) day prorated credit for any consecutive month in which the Guarantee is not met. To receive the credit the Client must contact TINKLE TELECOM ‘s customer service group within 30 days of the end of the month for which credit is requested. Credits will be paid to the Client in terms of clause 9.4.2.
- TINKLE TELECOM Latency Service Level Guarantee
TINKLE TELECOM ‘s Latency Service Level Guarantee (“Guarantee”) is based on an average round-trip transmission between TINKLE TELECOM -designated backbone POPs for TINKLE TELECOM services. Latency shall be measured by TINKLE TELECOM averaging sample measurements taken during a calendar month between such backbone POPs.
Latency of 50ms or less – The measurement consists of 50 100-byte pings sent every 15 minutes. A daily average will be calculated using these 96 samples. The daily measurements will be averaged to calculate a monthly average.
- TINKLE TELECOM Packet Success Service Level Guarantee
- Overall Service Availability
- Charges Mandated By Service Provider
TINKLE TELECOM reserves the right to pass on to Clients on a cost-plus basis (adding 10%) any charges levied by the Service Provider to which it is exposed as a result of the Client and/or its Users’ actions.
- Equipment
- All Services Equipment remains the property of TINKLE TELECOM at all times.
- The Client agrees to:
- prepare the Site and provide a suitable place, conditions, connection points and electricity for TINKLE TELECOM or carrier Equipment at the Site in accordance with TINKLE TELECOM ’s reasonable instructions, if any; and
- obtain all necessary consents, including for example, consents for any necessary alterations to buildings, permission to cross other people’s land or permission to put TINKLE TELECOM /carrier Equipment on their property.
- The Client is responsible for TINKLE TELECOM equipment and agrees to take reasonable steps to ensure that nobody (other than someone authorised by TINKLE TELECOM ) adds to, modifies or in any way interferes with it. The Client will be liable to TINKLE TELECOM for any loss of or damage to TINKLE TELECOM Equipment, except where such loss or damage is due to fair wear and tear or is caused by TINKLE TELECOM , or anyone acting on TINKLE TELECOM ’s behalf.
- Connection of Equipment
- Any equipment connected to the Service must be:
- technically compatible with the Service and not harm the TINKLE TELECOM Network, the Service or TINKLE TELECOM Equipment or another party’s network or equipment;
- connected and used in line with any relevant instructions or laws; and
- connected and used in line with any relevant standards including, in the order of precedence set out below:
(i) Any legal requirements imposed upon the parties including requirements arising from General Condition 2 set under section 45 of the Communications Act 2003;
(ii) any relevant specification notified by Ofcom in implementation of the recommendations of the Network Interoperability Consultative Committee;
(iii) any recommendations by the European Telecommunications Standards Institute; and
(iv) any recommendations by the Telecommunications Standards Bureau (formerly the International Telegraph and Telephone Consultative Committee) of the International Telecommunication Union. - The Client agrees to connect equipment to the Service only by using the NTE provided by TINKLE TELECOM with the Service.
- TINKLE TELECOM will not be liable for failure to meet any service level or other obligations under this Agreement if any equipment is found to be connected otherwise than in accordance with this clause.
- TINKLE TELECOM reserves the right to disconnect any Client equipment if the Client does not fulfil its obligations under this Clause 12 or if in the reasonable opinion of TINKLE TELECOM Client Provided Apparatus is liable to cause the death of, or personal injury to any person.
- Any equipment connected to the Service must be:
- Access and Site Regulations
- The Client agrees to take reasonable steps to provide access to the Client’s Site and to ensure that the End User provides TINKLE TELECOM with access to the End User’s Site including for the purpose of installation and use of the TINKLE TELECOM Equipment at the Client’s Site and/or at the End User’s Site.
- TINKLE TELECOM agrees to observe the Client’s and the End User’s reasonable Site safety and security requirements.
- The Client agrees to provide and agrees to take reasonable steps to ensure that the End User provides a suitable and safe working environment for TINKLE TELECOM at the Client’s Site and/or the End User’s Site. The Client agrees to indemnify TINKLE TELECOM against all loss, damages, liabilities, costs and expenses arising or incurred in respect of any actions, claims or legal proceedings which are brought or threatened against TINKLE TELECOM if the Client is in breach of this sub-clause. The limitation of liability provisions of this Agreement do not apply to this indemnity.
- It is the responsibility of the Client or End User to carry out any making good or decorator’s work required but TINKLE TELECOM accepts responsibility for any property damage caused by TINKLE TELECOM ’s negligence subject to the limitation of liability provisions of this Agreement.
- Charges
- The Client shall pay to TINKLE TELECOM the Installation Charges and Rental and any other charges due under this Agreement. Such charges shall be invoiced monthly in advance. The first Billing Period shall commence on the Go Live Date.
- All Charges payable hereunder by the Client shall be payable to TINKLE TELECOM in British Pounds Sterling in immediately available funds within agreed credit terms after the date of TINKLE TELECOM ‘s invoice.
- Where any Go Live Date is delayed at the Client’s request or by virtue of the Client’s act, neglect or failure to fulfil its obligations hereunder, the Rental for the first Billing Period and Installation Charges for that Service shall be payable no later than the Target Go Live Date for that Service unless otherwise agreed in writing between the Parties.
- TINKLE TELECOM shall be entitled to increase Rental and other charges payable by the Client after expiry of the Minimum Period from time to time by giving the Client not less than four (4) weeks’ prior written notice.
- The Charges are exclusive of all applicable taxes, including Value Added Tax, sales taxes and duties of levies imposed by any authority, government department, all of which, if any, shall be assumed and paid promptly when due by the Client.
- Without prejudice to TINKLE TELECOM ’s right to treat non-payment or late payment as a repudiatory breach of this Agreement, in the event of non-payment of any invoice which is not the subject of a bona fide dispute TINKLE TELECOM reserves the right to charge daily interest on any outstanding amounts until payment is received in full at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 as current from time to time whether before or after judgment until the date actual payment is received together with all external costs reasonably and necessarily incurred by TINKLE TELECOM in securing such payment and/or obtaining such judgment, as the case may be.
- All sums due to TINKLE TELECOM under this Agreement shall be payable by the Client in full (without any set-off, deductions or withholding whatsoever) by Bank Transfer, Direct Debit or Credit / Debit Card.
- TINKLE TELECOM reserves the right at any time to require the Client to issue a deposit, irrevocable letter of credit or other form of security acceptable to TINKLE TELECOM if the Client’s financial circumstances or payment history is or becomes unacceptable to TINKLE TELECOM .
- Use of the Service
- The Client shall use the Services strictly in accordance with any reasonable operating instructions issued by TINKLE TELECOM from time to time.
- The Client shall not itself or knowingly permit any User to use the TINKLE TELECOM Network or Services to do any of the following:
- publish, post, distribute or disseminate defamatory, infringing, obscene, indecent or other unlawful material or information;
- threaten, harass, stalk, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
- engage in illegal or unlawful activities through the TINKLE TELECOM Network;
- knowingly make available or upload files that contain software or other material, data or information not owned by or licensed to the Client, the User or Additional User (as appropriate);
- knowingly make available or upload files that contain a virus or corrupt data;
- falsify the true ownership of software or other material or information contained in a file that the Client, any User or Additional User makes available via the TINKLE TELECOM Network;
- “spam” or otherwise deliberately abuse any part of the TINKLE TELECOM Network;
- obtain access, through whatever means, to notified restricted areas of TINKLE TELECOM Network.
- If the Client becomes aware that any User or Additional User is using the TINKLE TELECOM Network to perform any of the activities listed in Clause 4.3 it shall enforce the applicable terms in its agreement with its User(s) and shall use all best endeavours to stop such User from doing so. In the event that TINKLE TELECOM becomes aware that a User or any Additional User is performing any of the activities listed in Clause 4.3, TINKLE TELECOM shall bring the breach to the attention of the Client in writing. If TINKLE TELECOM have not received, within one (1) Business Day of dispatch of such a message, a satisfactory response from the Client detailing the actions that have been taken to stop a User or Additional User performing in this way, which actions may include restricting the access of the User or Additional User to the TINKLE TELECOM Network or disconnecting the User or Additional User from the TINKLE TELECOM Network, then TINKLE TELECOM shall have the right to restrict the access of and/or disconnect the User(s) or Additional User(s) in question, and if necessary the entire Service, from the TINKLE TELECOM Network. If TINKLE TELECOM exercises its rights to disconnect a User or Additional it will notify the Client as soon as reasonably practicable in the circumstances.
- Each Party shall provide the other with all reasonably necessary co-operation, information and support to prevent and/or stop any misuse of TINKLE TELECOM Network by Users.
- Limitation of Liability
- Nothing in this Agreement shall exclude or restrict either Party’s liability for fraud, death or personal injury resulting from that Party’s negligence.
- Neither Party shall be liable to the other under or in connection with this Agreement, whether in contract, tort (including negligence), misrepresentation (other than where made fraudulently), breach of statutory duty or otherwise for:
- any loss of business, contracts, profits, anticipated savings, goodwill, or revenue;
- any loss or corruption of data; and/or
- for any indirect or consequential loss whatsoever incurred by either Party, whether or not the Party relying on this Clause 17.2 was advised in advance of the possibility of any such loss.
- Except in relation to Clauses 15.3 and 15.4 and the indemnity in Clause 16.2, the total aggregate liability of either Party to the other under or in connection with this Agreement shall not exceed the lesser of one hundred thousand pounds (£100,000) or the Charges due to TINKLE TELECOM in the previous 12 month period for any one event or series of events.
- In relation to Clause 15.3 and 15.4 only, the total aggregate liability of the Client to TINKLE TELECOM shall not exceed two hundred thousand pounds (£200,000) for any one event or series of events.
- The Client shall be liable to TINKLE TELECOM for all liabilities, claims and costs arising directly from the acts and omissions of any third parties (including Users) using the Service through the Client, relating to the Client’s use of the Services except where such liabilities, claims and costs arise from TINKLE TELECOM ’s negligence or breach of this Agreement.
- The Client agrees to indemnify defend and hold harmless TINKLE TELECOM against all liabilities claims, liabilities, losses and costs (including reasonable and properly incurred legal costs) arising directly in connection with the Client’s use of the Service by the Client’s Users or any third party using the Service through the Client except where such claims arise from TINKLE TELECOM ’s negligence or breach of this Agreement.
- Termination
- This Agreement may be terminated without penalty:
- by TINKLE TELECOM providing notice via the control panel provided that such notice shall not expire before the end of the Minimum Period; or
- by the Client providing notice in writing no later than the minimum lead times set in 16.1.3 prior to the expiry of the Minimum Period or any subsequent renewal.
- Minimum cease lead times are details as follows:
- This Agreement may be terminated without penalty:
Lead Time | ||
BT Wholesale | Fibre | 30 Working Days |
EFM | 30 Working Days | |
GEA | 30 Working Days | |
Wireless | 30 Working Days | |
TalkTalk Business | Fibre | 30 Working Days |
EFM | 30 Working Days | |
EoFTTC | 30 Working Days | |
Sky | Fibre | 30 Working Days |
Virgin Media | Fibre | 90 Days |
CityFibre | Fibre | 35 Working Days |
GPON | 35 Working Days | |
Colt | Fibre | 90 Days |
Openreach | Fibre | 30 Working Days |
- Notwithstanding the termination of this Agreement the terms of this Agreement shall remain in force in respect of any Order until the expiry of the Minimum Period for the provision of Services in that Order. For the avoidance of doubt, the termination of this Agreement shall not be effective until the Minimum Period for any existing Order has expired.
- Notwithstanding any other rights under this Agreement, either Party may terminate this Agreement immediately in the event that:
- the other Party holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors (including any voluntary arrangement as described in the Insolvency Act 1986); has a receiver, administrator, or other encumbrancer take possession of or appointed over or has any distress, execution or other process levied or enforced (and not discharged within 7 days) upon the whole or substantially all of its assets; ceases or threatens to cease to carry on business or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or
- if either Party commits a material breach or other persistent breach of this Agreement which in the case of a breach capable of being remedied, is not remedied within thirty (30) days of a written request by the other Party to remedy the same.
- TINKLE TELECOM may immediately terminate or suspend all or any part of this Agreement or the Services if:
- Ofcom or PhonepayPlus determine, or TINKLE TELECOM reasonably considers, that use of the Services by the Client or any User or Additional User (i) does not constitute Appropriate Use (ii) is in breach or may be in breach of the Code or any other relevant statutory or regulatory act, regulation, code or similar (iii) is fraudulent or illegal or may be fraudulent or illegal; or
- if Ofcom or any other authority of competent jurisdiction revokes the supplier’s authorisation as Public Electronic Communications Network under the Act and as a result TINKLE TELECOM can no longer legally comply with its material obligations under this Agreement and the Service Agreements.
- Consequences of Termination
- Except as provided for in clause 16.2, in the event of the termination of this Agreement for whatever reason the Client shall:
- cease to use any of the Services, and;
- permit TINKLE TELECOM or any nominated representative of TINKLE TELECOM to enter the Sites during any Business Day for the purpose of removing any or all of the Services Equipment;
- Except as provided for in clause 16.2, in the event of the termination of this Agreement for whatever reason the Client shall:
- where TINKLE TELECOM is entitled to terminate this Agreement as a result of a default by the Client provided for in clause 16.3.1 or 16.3.2 or failure to pay any Charges or other amount due in terms of this Agreement; TINKLE TELECOM shall be entitled to continue to provide the Services to any person or entity making use of the Services or any facility of the Services at the time TINKLE TELECOM ’s right of termination arises. The Client shall provide any permission or authorisations required enabling TINKLE TELECOM to continue the uninterrupted provision of the Services and TINKLE TELECOM shall be entitled to contract directly with and receive payment directly from such users including any Charges due by the Client to TINKLE TELECOM in terms of this Agreement.
- In the event of a customer terminating their service prior to the contractual period purchased, the customer agrees to pay any remaining rental charges from the date of cancellation to the date the contractual period finishes. TINKLE TELECOM reserve the right to levy a charge on the remaining period. For example, should three months remain on the contractual period and the service ceases prior to this final date, TINKLE TELECOM reserve the right to levy a single charge of three months collectively.
- In the event of you or the customer cancelling the order once it has been placed, you agree to pay any charges levied by our carriers to us.
Tinkle Retention Policy
This article discusses the options available to Tinkle users when backing up their account data. It also provides data retention guidelines for the account in general as well as for the Analytics Portal.
Tinkle enforces rules for managing account data storage for optimal system performance and reliability. According to the enforcement of the Tinkle Data Protection Policy, users have options for backing up data before it is deleted.
Voicemail, call recordings, and call logs can be viewed through the Tinkle manager
Account Data Backup Options
Tinkle Users can back up their account data by download the data from the tinkle manager
Download the data from the Tinkle Manager
Users can download their voicemail, call logs, and call recordings from the Tinkle online account.
FEATURE | BACKUP OPTION |
Call Recordings | Yes |
Call Logs | Yes |
Voicemails | Yes |
General Account Data Retention Guidelines
IMPORTANT: If a user extension is deleted from the account, any call recordings or messages associated with this user will also be permanently deleted and can not be recovered. It is recommended to download and save any recordings or messages that need to be retained before deleting any user from your account.
FEATURE | DURATION | COUNT / SIZE |
Automatic Call Recordings | 1 rolling calendar year’s recordings. (Further years can be purchased if data needs to be kept longer) | No Limit |
Inbox | 1 rolling calendar year’s recordings. (Further years can be purchased if data needs to be kept longer) | No Limit |
Call Log/Stats | 12 months | No limit |
Analytics on system usage (to support development and technical queries) | 1 month | – |
