1.1. In these Terms and Conditions of Business the following expressions shall have the following meanings:
1.1.1. “Cerberon Solutions” means Cerberon Solutions Limited (Company No. 08100498) whose registered office is at 20-22 Wenlock Road, London, N1 7GU
1.1.2. “Client” means the organisation and person(s) whose name and address are set out on the order details
1.1.3. “Services” means the services relating to the Cloudphone Voice over IP Telephony hosted PBX service
1.1.4. “Confidential Information” means information concerning or relating to know-how, trade secrets, technical processes, customer, client and supplier lists, price lists, reports, memoranda, details of contractual arrangements and any other matters concerning the business affairs or finances of Cerberon Solutions or the Client (as the case may be) or clients or customers of or other persons having dealings with either of them
1.1.5. “Quotation” means the estimated costs of the Services including goods
1.1.6. “Property” means the property of the Client as specified in the Particulars or as notified in writing by the Client to Cerberon Solutions
1.1.7. “Contract” means the contract for the supply by Cerberon Solutions to the Client of services including (but not limited to) these Terms and Conditions and any special terms and conditions specified in the Particulars and materials to be supplied
1.1.8. “Particulars” mean the particulars set out in this contract or in the latest agreed version of the quotation
1.1.9. “Cloudphone” relates to the hosted Voice over IP solution provided by Cerberon Solutions
1.2. The clause headings in this Contract are for ease of reference only and shall not be taken into account in the construction or interpretation of the clauses to which they refer.
1.3. These terms supersede any prior agreement (oral or in writing) between the parties and the parties acknowledge that this Contract contains the whole agreement between them and that the Client has not relied upon any oral or written representations made by Cerberon Solutions or its employees or agents.
1.4. This Contract shall be governed by English Law and the parties shall submit any dispute arising hereunder to the exclusive jurisdiction of the English Courts.
2. Services and Service Duration
2.1. The standard hours of support are 9am – 5pm Monday to Friday and exclude national public holidays.
2.2. No Specific Service Level Agreements have been determined but the Service Provider will target working on priority issues within 4 businesses hrs of it being raised.
2.3. The contract duration is 24 months from the day that the service is activated and made available to the Client.
2.4. Excluded services include:
2.4.1. Emergency / Out of hours support
2.4.2. Support for additional hardware items (e.g. Servers, Network Storage Devices, Printers, Desktops) are out of the scope of this work order but can be added to the scope of the service at the rates detailed in section 2.5
2.5. Support for the delivery of excluded services will be charged on a Time & Materials with activity being agreed in advance and charged at £60/hour. Emergency out of hours support will be charged at an hourly rate of £100
2.6. Cerberon Solutions will provide the Services to the Client subject to the terms of this Contract to the exclusion of all other terms and / or contracts.
2.7. The Client will at its own expense provide Cerberon Solutions with all necessary information, equipment, materials, data and documentation in relation to the Services, and will be solely responsible for the accuracy thereof and warrants that the same does not infringe the copyright or other rights of any third party, and that the Client will indemnify Cerberon Solutions against any loss, damages, costs, expenses or claims arising from any such infringement
2.8. If Cerberon Solutions has issued a Quotation which the Client wishes to accept, an order for the Services must be placed with Cerberon Solutions by returning a duly signed copy of the Quotation together with a duly signed copy of the Contract to Cerberon, but no contract shall exist until Cerberon Solutions accepts and countersigns the Contract from the Client.
2.9. Any managed support contracts shall commence on the date Cerberon Solutions accepts the Client’s order in accordance with the provisions of clause 2.3 and unless terminated earlier in accordance with clause 12 shall continue for a period of one year
2.10. Unless otherwise stated, any Quotation issued by Cerberon Solutions is valid for acceptance for 30 days from the date thereof Provided that Cerberon Solutions has the right to withdraw the Quotation at any time
2.11. A minimum contract duration of 12 months applies to the Cloudphone ‘Classic’ call plan. The ‘Premier’ and ‘Premier Plus plans have a contract duration of 24 months. Should the client wish to terminate the contract before this period then an early termination fee would apply. This would be applied at 75% of the remaining monthly fees plus the settlement of any outstanding call fees.
2.12. Cerberon solutions retains to the right to amend the Cloudphone service call rates. The client will be notified in advance of any planned changes to rates.
2.13. In placing the order for Services the Client confirms to Cerberon Solutions that the Client accepts and understands the provisions of this Contract and if Cerberon Solutions accepts the order, the Client agrees to be bound by such provisions
2.14. If any Quotation or Contract contains provisional sums, or if unforeseen work or services require to be carried out, Cerberon Solutions shall use its best endeavours to ascertain an accurate cost and agree it with the Client before incurring expenditure on the Client’s behalf. However, if this is not possible the Client shall pay the actual cost of the service or item in which case the total price set out in the Quotation or in the Contract shall be adjusted accordingly
2.15. In the event that the Client wishes to cancel the Support Contract the Client must notify Cerberon Solutions in writing and such cancellation will only be valid if it is acknowledged, confirmed and accepted by Cerberon Solutions in writing. The Client will be liable to pay for the Services provided up to the date of cancellation (including but not limited to the work carried out and any goods, materials or services supplied or ordered on the Client’s behalf, loss of profit and all cancellation or termination fees payable by Cerberon Solutions to any third party). The amount of such fees shall be at the sole discretion of Cerberon Solutions but shall in no event be less than 50% of the value of the Contract. If Cerberon Solutions accepts the amendment or postponement the Client will within 15 days from the date of invoice pay to Cerberon Solutions all costs associated with such amendment or postponement (including but not limited to costs in connection with the Services carried out and any goods, materials or services supplied or ordered on the Client’s behalf, loss of profit and all amendment and postponement fees payable by Cerberon Solutions to any third party).
2.16. Cerberon Solutions shall use its reasonable endeavours to meet any dates and times specified for performance of its obligations contained in the Quotation or in this Contract. However, all such dates and times are approximate only and Cerberon Solutions shall not be deemed to be in breach of the Contract and shall not be liable in any manner for any delay, for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the performance of its obligations, and time shall not be of the essence of this Contract.
2.17. For the avoidance of doubt, Cerberon Solutions shall only be obliged to provide the Services as detailed in this Contract. In the event that the Client wishes Cerberon Solutions to carry out or provide any further or additional services (including, but not limited to, providing any service to put any of the Client’s software in good operating condition; if applicable, providing support services outside the hours designated for the provision of the Services in accordance with this Contract, additional site attendances), such will be provided at Cerberon Solutions’ absolute discretion and will be subject to the payment by the Client of all costs, fees and expenses associated with the same and upon terms agreed between the Client and Cerberon Solutions.
2.18. Notwithstanding the provisions of clause 10.1 of this Contract, the Services provided by Cerberon Solutions under this Contract do not include such services including (but not limited to):
2.19. Providing accessories, supplies operating materials or consumables unless specifically ordered and agreed in advance
2.20. Repairing, changing, modifying, adjusting, enhancing or altering of software from the manufacturers’ specification whether or not as a result of a fault or rectifying any inherent manufacturing or design fault of the manufacturer
2.21. Repairing, supporting or servicing required as a result of accident, misuse, operator error, fault modification or negligence on the part of the Client, its agents, employees or third parties howsoever caused including but not limited to fluctuations in the electrical power supply
3. Payment and Pricing
3.1. All sums payable by the Client pursuant to this Contract are (unless otherwise stated) exclusive of any Value Added Tax or any other applicable tax which the Client will pay in addition on the due date for payment.
3.2. Unless otherwise agreed in writing, Cerberon Solutions will, on the signature of the contract commence monthly billing. The Client will pay the invoice in full within 15 days of the date of such unless otherwise agreed in writing.
3.3. Payments can only be made in pounds sterling and may be made in cash, by Paypal (firstname.lastname@example.org) or by bank draft or by BACS or CHAPS payment methods.
3.4. Should the Client fail to pay any invoice, or any part thereof, submitted by Cerberon Solutions, Cerberon Solutions may, without prejudice to any other right or remedy available to it, charge the Client interest at the rate of 5% above the base rate of Barclays Bank Plc from the due date until payment is made in full.
3.5. Ownership of the goods and materials (if any) supplied by Cerberon Solutions or its agents, whether installed or not, shall not pass to the Client until all sums due to Cerberon Solutions have been paid in full and until such time the Client shall keep such goods and materials in good repair and condition and properly protected and insured, and Cerberon Solutions shall at any time be entitled to be returned or remove from the Client’s property any item the subject of the Services for which the Client has not paid in full.
3.6. Cerberon Solutions shall be entitled to cease the provision of Services to the Client until such time as all outstanding fees and interest are paid in full
3.7. Cerberon Solutions shall be entitled to exercise a lien over any items, equipment belonging to the Client which may be in the possession of Cerberon Solutions until all moneys due under this Contract have been paid.
3.8. All sums payable to Cerberon Solutions under this Contract shall become due immediately upon termination of the Contract despite any provision to the contrary.
3.9. Payment is not considered received from the Client until Cerberon Solutions receives notification of cleared funds representing the amount paid in its own, nominee or agent bank account.
4. Cerberon Solutions’ Obligations
4.1. If the Client requires any particular goods and materials to be supplied by Cerberon Solutions, the Client must provide written details of these when accepting the Quotation or the goods and materials supplied shall be selected at Cerberon Solutions absolute discretion and, unless the goods and materials are not of satisfactory quality or fit for their purposes
4.2. The Client shall not be entitled to reject any goods and materials supplied by Cerberon Solutions unless the goods and materials are not of satisfactory quality or fit for their purposes
4.3. If the Client requests that Cerberon Solutions uses goods or materials supplied by the Client for the purposes of providing the Services, Cerberon Solutions shall do so on the strict understanding that Cerberon Solutions has no responsibility as to their quality or suitability and any loss or damages which may flow from the use of such goods or materials will be the sole responsibility of the Client.
4.4. For the avoidance of doubt Cerberon Solutions does not provide any warranty for any goods or materials provided. Any warranty will be that provided by the product manufacturer or software provider’s standard warranty.
5. The Client’s Obligations
5.1. The Client shall permit Cerberon Solutions, its employees, sub-contractors, agents and other appointed representatives access to the Property at all reasonable times for the purposes of providing the Services.
5.2. The Client will be responsible for any loss or damage to any goods, materials, tools or equipment delivered to or stored at the Property except to the extent that such damage arises from the failure of Cerberon Solutions to take reasonable care.
5.3. The Client shall at its own cost ensure that all information, data, documentation, and material (“Information”), all ventilation, light, telephone, power supplies and equipment and all personnel engaged by or associated with the Client and required for the performance of the Services by Cerberon Solutions in accordance with the terms of this Contract are made available to Cerberon Solutions at all reasonable times, and in the case of Information that is complete and accurate
5.4. The Client shall ensure that any goods, products or other equipment supplied by it to Cerberon Solutions for the purpose of carrying out the Services are of satisfactory quality and fit for their purpose
5.5. The Client shall at all times be solely responsible for the security, integrity of all programs, equipment, data and other information (confidential, sensitive or otherwise) at the Property before, during and after the performance of the Services by Cerberon Solutions in accordance with the terms of this Contract
5.6. The Client shall ensure at all times that all software relating to the provision of the Services by Cerberon Solutions is of a release version or level which is compatible with the current level of hardware, firmware and other software and is licensed for use by the Client and that the software is available at the Property and not out of date or incompatible and is readily installable and in good operational condition and not damaged or corrupted
5.7. The Client shall ensure that during the continuance of this Contract it shall allow and enable allow and enable a fully operational remote access support facility to enable Cerberon Solutions to carry out the Services and the Client confirms it gives full authority and permission to Cerberon Solutions to access and use
5.8. The Client shall comply at all times with any obligations imposed on it under the Data Protection Act 1998, or any other data protection obligations applicable to it, in relation to the provision of information and other material to Cerberon Solutions to facilitate the carrying out of the Services, and the Client shall ensure that the provision of any such information or other material to Cerberon Solutions will not breach any confidentiality obligations that may be imposed upon it
5.9. Unless otherwise agreed in writing by Cerberon Solutions the Client will not during the continuance of this Contract allow any other person, firm or company other than Cerberon Solutions to adjust, repair, alter or upgrade or maintain the software or hardware except in respect of the usual operational configurations.
5.10. The Client will notify Cerberon Solutions immediately if the software develops an operating fault Provided that if the Client shall fail to notify Cerberon Solutions in accordance with this clause of any operating fault, Cerberon Solutions’ liability under this Contract shall be limited to such support as would have been required had the fault been reported when it first arose and the Client shall be liable for any additional services support or repairs which are necessitated as a result of the delay in reporting the defect or operating fault to Cerberon Solutions
5.11. The Client will afford to Cerberon Solutions, its staff, agents and sub-contractors, whilst on the Property or the premises of a third party, the same protection for health and safety as is due to the Client’s employees
6. Important Cloudphone Service Information
6.1. The Customer acknowledges that this is a Voice over Data Network service, and as such, it is dependent on the Customer’s connection to the data network and the data network itself. The Customer’s service may therefore cease to function if there is a power failure or a failure in the underlying data network. Equally, the quality of the calls may be adversely affected by traffic shaping or bandwidth management by the providers of the data network / service to the premises.
6.2. The Customer understands and acknowledges that this service allows calls to the emergency services numbers 999 and 112 and that calls to these services may fail if there is a power cut or if the customer’s broadband connection fails.
6.3. Any desktop phones provided as part of an inclusive service bundle will remain the property of Cerberon Solutions for the duration of the contract and be subject to return to Cerberon Solutions at the termination of the contract. Replacement telephones will be chargeable.
7. Cloudphone Content and the customer Responsibility
7.1. Cerberon Solutions will exercise no control whatsoever over, nor have any responsibility or liability whatsoever for, the content of the information passing through its network. Cerberon Solutions shall make no effort to validate any information passing through its network for content, correctness, usability or for any other reason.
7.2. Any users causing inappropriate CPU (central processor unit) usage, system load, performing any illegal activities or misusing 999 / 112 services will be immediately suspended.
7.3. Any users found on our servers which fit any of the descriptions above will be immediately disabled, removed, and are subject to a £450 clean-up and service fee upon termination. On such accounts all monies outstanding must be paid and refunds for any remaining months will not be given.
7.4. Music on Hold. Licences: Cerberon Solutions’ Music on Hold service is a storage only system. You are wholly responsible for ensuring that you have the appropriate rights and licences to play the music that you upload.
7.5. We will remove any content that is contrary to UK law, or considered inappropriate or indecent without consultation or prior notice and at our sole discretion.
7.6. The client is required to keep their account in good order and ensure that they check their account on a regular basis by logging into their account on our website. All configurable services are controlled by the customer using the on line control panel.
7.7. The Client is liable for all call costs that inbound and outbound calls associated with their account, be they fraudulent or not.
7.8. From time to time, Cerberon Solutions will email its customers with information that it judges necessary for the ongoing upkeep and maintenance of their accounts and with information about changes, updates and new services that have become available. The Customer agrees to accept these emails unless and until they cancel all active services on their account.
8. Terms of Liability
8.1. The Client shall only make a claim of any nature, if any, arising out of or in connection with this Contract against Cerberon Solutions and shall not make any claim of any nature against any persons or persons involved in the performance of this Contract.
8.2. Cerberon Solutions shall not be liable for any defect in any goods and materials supplied nor for any works carried out which arise from fair wear and tear, wilful damage, negligence of the Client, failure to follow Cerberon Solutions’ instructions (whether oral or in writing) or any instructions of the manufacturer or supplier of the goods or alterations made or actions taken without Cerberon Solutions’ approval.
8.3. In no event shall Cerberon Solutions be liable to the Client for any damages resulting from loss of data or use, corruption of data, loss of profits or business or any indirect or consequential loss or damage.
8.4. Subject as expressly provided in this Contract and except where the Services are supplied to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.5. Cerberon Solutions’ liability to the Client in respect of breach of contract or breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with this Contract will be limited to taking reasonable steps to correct any such breach at Cerberon Solutions’ expense and Provided that the amount of its liability shall be limited in any event to a total of the value of this Contract to include interest and costs save that this provision shall have no application to any liability in respect of death or personal injury or any other liability for which exclusion or restriction is prohibited by law.
9.1. The materials used in the Products are not manufactured by Cerberon Solutions and Cerberon Solutions gives no express warranty to the Customer in respect of such material, their performance or durability. Cerberon Solutions will where possible, pass on such guarantees as manufacturers/suppliers provide and will notify manufacturer/suppliers of any written complaints made by the Customer to it relating to any Products manufactured/supplied by them
10. Intellectual property
10.1. Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by Cerberon Solutions during the performance of the Service(s) shall belong to Cerberon Solutions unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property
11.1. The Client will indemnify Cerberon Solutions against any damages, losses, costs, claims or expenses, or any other sums incurred by it in respect of any loss Cerberon Solutions suffers directly or indirectly, or any claim brought against it by any third party in relation to any loss, injury or damage in any way connected with the performance of this Contract or Any costs, claims or expenses of any third party involved in recovering outstanding monies due from the Client to Cerberon Solutions
12.1. Cerberon Solutions and the Client shall not except as authorised or required by this Contract, or except as required by law, at any time (whether during or after the termination of this Contract) reveal to any person, firm or company any of the Confidential Information and it shall not use or attempt to use any Confidential Information in any manner which may injure or cause loss or may be calculated to injure or cause loss or disadvantage whether directly or indirectly to the other party
12.2. The parties shall use their reasonable endeavours to preserve the Confidential Information and to prevent the publication or disclosure of any Confidential Information
12.3. Cerberon Solutions shall be entitled to make and retain copies of any data, information, material or documentation provided to it by the Client in the course of providing the Services as it deems necessary for the full and proper maintenance of its business records
13.1. Without detracting from Cerberon Solutions’ duty of confidentiality, Cerberon Solutions shall be entitled to act for any competitor or client of the Client whether or not there is a conflict of interest
14.1. The Client may only terminate this Contract in accordance with provisions of clause 2.
14.2. Cerberon Solutions shall be entitled without prejudice to the other rights and remedies available to it, either to terminate the whole or any part of this Contract or to suspend any future service in any of the following events:
14.3. If any debt due and payable by the Client to Cerberon Solutions is unpaid on the due date of payment, or if the Client is in breach of its obligations under the Contract which in the case of a breach capable of remedy is not remedied by the Client within 15 days of receipt by it of a notice specifying the breach and requiring its remedy
14.4. The Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation or a receiver is appointed of any of the property or assets of the Client, or if the Client ceases or threatens to cease to carry on business or Cerberon Solutions reasonably apprehends that such events are about to occur in relation to the Client
15. General Terms
15.1. Any disputed matter referred to arbitration under this Contract is to be decided by arbitration under Part 1 of the Arbitration Act 1996 by a single arbitrator appointed by the parties to this Contract.
15.2. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person other than the parties to this Agreement shall have any rights under it nor shall it be enforceable under that act by any person other than the parties to it.
15.3. This Contract shall operate on the footing that if any of the provisions either in part or in whole is held by a Court or any other competent authority not to be valid or enforceable, the validity and enforceability of the remaining provisions of the Contract and the remainder of the affected provision shall continue to apply Contract and all patents, copyrights, design rights and all other rights in relation to such items shall remain vested in Cerberon Solutions.
15.4. Cerberon Solutions may assign, licence or sub-contract all or any part of its rights or obligations under the Contract without the Client’s consent.
15.5. This Contract is personal to the Client who may not assign licence or sub-contract all or any of its rights or obligations under this Contract without Cerberon Solutions’ prior written consent.
15.6. The Client acknowledges that no data transmissions over the Internet can be guaranteed to be 100% secure or free from viruses or faults and Cerberon Solutions cannot ensure or warrant the security of any information transmitted by it to the Client and the Client accepts such data transmission at its own risk
15.7. Any variation to this Contract shall have no effect unless expressly agreed in writing between the parties
15.8. Cerberon Solutions shall not be liable for any failure to perform its obligations under this Agreement due to unforeseen circumstances or circumstances beyond its control including without limitation adverse weather conditions, flood or fire
15.9. Notwithstanding the other provisions of this Contract and for the avoidance of doubt, the Client accepts and acknowledges that Cerberon Solutions is not able to give any guarantee whatsoever in connection with any fix times with regard to the resolution of any software issues, particularly in circumstances where software manufacturers need to prepare and release new updates to resolve those issues, such preparation and release being outside the control of Cerberon Solutions