Terms and Conditions of Service

070 Personal Numbering Service [inc. FlivrtDivert4u Service]
Ovation Messaging Limited

1 DEFINITIONS
In this document the following words shall have the following meanings:

1.1 "Agreement" means these Terms and Conditions together with the terms of any applicable Specification Document;

1.2 "Customer" means the organisation or person who purchases goods and services from the Supplier;

1.3 "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;

1.4 "Specification Document" means a statement of work, website content, quotation or other similar document describing the goods and services to be provided by the Supplier;

1.5 “Service” means the service to be provided to the customer by Ovation Messaging Limited and set out in an appropriate Specification Document, if applicable.

1.6 “Service Target” the performance levels specified on the Order Form, Specification Document, and/or Service Level Agreement, if applicable.

1.7 “Goods” refer to the system/solution hardware, to which a service may/will be carried through.

1.8 “Personal Numbering Services” include the FlirtDivert4u service.

1.9 “Ovation” means Ovation Messaging Ltd of Dunston Innovation Centre, Dunston Road, Chesterfield S41 8NG.

2 GENERAL
2.1 These Terms and Conditions shall apply to all 070 Personal Numbering Servicing issued by Ovation Messaging Limited and the Customer registered as the user.

2.2 Ovation shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services, all delivery dates are estimates and are not a perquisite of the provisioning of the service.

3 PRICE, PAYMENT and MINIMUM TERM
3.1 The minimum service term is 12 months. After which the service can be cancelled at anytime in line with (13). No payment is applicable by the registered user for the provisioning and unlimited use of Ovation 070 number services.

3.2 At no point in the provision of this service will Ovation share any revenue generated by its Personal Numbering activities with the end user.

4 SPECIFICATION OF THE GOODS
4.1 All goods shall be required only to conform to the specification in the Specification Document, in this case the website content describing the service, intended use, and configuration of the FlirtDivert4u 070 Personal Number service. For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Supplier and no representation written or oral, correspondence or statement shall form part of the contract.

4.2 Ovation 070 Personal Numbering Services provide number translation that enable End-Users to be called or otherwise contacted, using a single Personal Telephone Number, and to receive those calls or other communications at almost any Telephone Number, including mobile and a voicemail2email facility.

4.3 Ovation Personal Numbering Service principally offer a service to the person being called. They may also provide benefits to the caller as a result but the service/s is provided to the benefit of the person being called, the “end user”.

5 PROVISION OF SERVICE
5.1 In consideration of the charges Ovation agrees to provide the customer with the Service in accordance with the provions of the agreement.

5.2 Ovation 070 Personal Numbers Services are not Premium Rate Numbers and should not be used or represented as a Premium Rate Service.

5.2 For operational reasons Ovation may vary the technical specification of and make any operational changes to the Service and the Passwords. Ovation will make its reasonable endeavours to provide the service during working hours and shall use its reasonable endeavours to meet its Service Target.

5.3 Ovation cannot guarantee continuous uninterrupted provision of the service. Ovation reserves the right to interrupt the service to carry out routine maintenance, repairs, reconfigurations or upgrades or for any other circumstances beyond its reasonable control. It is highly technically impracticable to provide a fault free Service and Ovation does not intend undertake to do so and shall not be liable for its failure to provide continuous Service or any failure to meet the Service Target.

5.4 Ovation reserves the right to control direct and establish technical procedures for the use of the Service and the Customer agrees to follow the reasonable instructions and procedures of Ovation with respect to the same.

5.5 The product/service/s are provided subject to the condition that there will be no abuse or fraudulent use thereof. Abuse and fraudulent use of Service shall include (without limitation):

5.5.1 Obtaining, or attempting to obtain, the Service by rearranging, tampering with, or making connection with any facilities of Ovation, or by any trick, scheme, false representation or false credit device, or by or through any other fraudulent means or devices whatsoever, with intent to avoid payment, in whole or part, of the regular charges for the service, if applicable.

5.5.2 Attempting to, or actually obtaining, accessing, altering, or destroying the data files, programs, procedures, and/or information of Ovation; or;

5.5.3 Assisting another to perform the acts prohibited in sub clause 5.5.1 or sub clause 5.5.3 above.

5.4 The Customer acknowledges that neither the internet nor the telecommunications network used in the provision of the service is secure and accordingly Ovation cannot guarantee the privacy of any of the customers information is connected by these methods, including e-mail communication.

5.5 070 NGN numbers are supplied solely as a Personal Number Service, otherwise known as a “Follow Me” service, with a personal voicemail facility.

5.6 All Numbers are owned by Ovation but are operated on behalf of the Customer, for their singular use only. Ovation reserve the right to control and change the number format in case of emergency of failure of the customer to comply with the terms of provision of service as explained above.

5.7 NGN numbers may be available for porting away from Ovation in the future to a compatible carrier with a porting agreement in place with the appropriate Tier 1. However, this would immediately cancel any services provided by Ovation on to or through the number at that time and a porting charge may also be applied.

5.8 The customer is in charge of the destination of the service and Ovation have a process in place to facilitate the customer changing the destination data using a chargeable SMS Text shortcode, at the advertised and specified rate.

6 DELIVERY/LEAD TIME
6.1 The date of delivery specified by Ovation is an estimate only. Time for delivery shall not be of the essence of the contract and the Supplier shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods. The product is considered a delivered product when it has been signed off as completed and a period of feedback and fine tuning [included in estimated lead time period] is complete and the customer is happy to activate the system, under reasonable compliance with the product Specification Document.

6.3 A period of feedback and fine tuning may be included in the delivery lead time of the initial product. Any alterations that fall beyond reasonable ‘fine tuning’ and alteration may be costed as additional products or service add-ons.

7 TITLE
Title in the Goods shall not pass to the Customer until the Supplier has been paid in full for the Goods.

8 CUSTOMER`S OBLIGATIONS
8.1 To enable Ovation to perform its obligations under this Agreement the Customer shall:

8.1.1 co-operate with the Supplier;

8.1.2 provide the Supplier with any information reasonably required by the Supplier;

8.1.3 obtain all necessary permissions and consents which may be required before the commencement of the services; and

8.1.4 comply with such other requirements as may be set out in the Specification Document or otherwise agreed between the parties.

8.4 In the event that the Customer or any third party, not being a sub-contractor of Ovation, shall omit or commit anything which prevents or delays Ovation from undertaking or complying with any of its obligations under this Agreement, then Ovation shall notify the Customer as soon as possible and:

8.4.1 Ovation shall have no liability in respect of any delay to the completion of any project;

8.4.2 if applicable, the timetable for the project will be modified accordingly;

8.4.3 Ovation shall notify the Customer at the same time if it intends to make any claim for additional costs.

9 ALTERATIONS TO THE SPECIFICATION DOCUMENT
9.1 Ovation reserves the right to change the specification document which ultimately changes the set specification of the product and service/s provided. Ovation will give the customer at least 14 days notice of any intended changes to the specification agreement.

10 WARRANTY
10.1 Ovation warrants that as from the date of delivery the goods and all their component parts, where applicable, are free from any defects in design, workmanship, construction or materials. As this is a managed product with an on-going service element the warranty extends for the life that the product is in active use by the customer.

10.2 Ovation warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.

10.3 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the goods and services to be provided by Ovation.

11 INDEMNIFICATION
The Customer shall indemnify Ovation against all claims, costs and expenses which Ovation may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against Ovation alleging that any goods and/or services provided by Ovation in accordance with the Specification Document infringes a patent, copyright or trade secret or other similar right of a third party.

12 LIMITATION OF LIABILITY
12.1 The entire liability of Ovation to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Customer to which the claim relates.

13 TERMINATION
After the minimum service period has been exceeded either party may terminate this Agreement forthwith by notice in writing to the other if:

13.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;

13.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;

13.3 the other party passes a resolution for winding up or Bankruptcy.

14 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of Ovation, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in Ovation by the execution of appropriate instruments or the making of agreements with third parties.

15 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.

16 INDEPENDENT CONTRACTORS
The Supplier and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in > addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Specification Document.

17 ASSIGNMENT
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Supplier.

18 SEVERABILITY
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

19 WAIVER
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.

20 NOTICES
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.

21 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.

22 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.

23 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.