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Difference Customer Terms and Conditions

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Difference Corporation Ltd Terms and Conditions
Version No. 1  2012                    
 
   
                             
CONFIDENTIAL                          
1. CONTRACT DEFINITIONS   5. ACCESS EQUIPMENT                
1 .1  “DIFFERENCE” means Difference Corporation Limited in which expression shall, where it   5.1 The Customer shall provide without charge or cost to Difference appropriate equipment space, 
  requires, include it’s successors and assigns and any Associated Company thereof.     environment and continuous stable electrical power to install and maintain the equiptment at it's premises.
1 .2  “Application Form” means the application form relating to the provision of the Services in the form 5.2 Any Difference access Equipment shall remain with Difference and Access Equipment that is on the Customer’s 
  provided by Difference from time to time     premises, the Customer shall ensure that it is kept safe and upon termination of the Contract, 
1.3 “Authorised Person” means an employee or subcontractor of Difference     the Customer will ensure that Difference is allowed prompt access to all relevant premises to remove 
1.4 “Associated Company” means any subsidiary of Difference or other associated company as      the Difference Access Equipment.            
  sections 736 and 736A of the Companies Act 1985.                          
1.5 “Customer” means a person or company whose Application Form is accepted by Difference     6. TERMINATION                  
      6.1 The Contract may be terminated by either the Customer or Difference at any time by giving 90 days 
1.6 “Contract” means the contract governed by these Terms and Conditions made between Difference and the   written notice prior to any anniversary of the Agreement. This must be sent to our Registered 
  Customer created upon acceptance by Difference of the Customer’s Application Form and      Address - Difference Corporation, Station Masters Office, South Queensferry, Edinburgh, EH30 9JP 
  the opening of an Account for the Customer.     for the attention of Customer Services.             
1.7 “Least Cost Routing Software” means software installed on a telephone system which automatically 6.2 If neither Difference nor the Customer provide notice to termination in accordance with condition 6.1 the
  enables the routing of calls via different telephone networks.     Customer and Difference agree that the Contract shall automatically be renewed for a further term.
1.8 “Services” means rerouting the Customer’s telecommunications under the terms of this Contract, to 6.3 Difference (without prejudice to it’s other rights) may terminate the contract forthwith in the event: 
  include where specified Line Rental.     a) The customers fails to make any payment when it becomes due to Difference or shall default in 
1.9 “Services Literature” means Difference literature specific to the Services and other associated Service performance or observance of any obligation under the Contract or any other Contract with 
  existing from time to time.     Difference or an Associated Company and (in the case of remedial breach) fails to remedy in
1.10 “User” means the Customer and any individual or company permitted to use the Services.     a reasonable time specified by Difference in it’s written notice to do so.    
1.11 “Account” means the Account opened by Difference in the name of the Customer upon creation of the b) An interim order is made, or a voluntary arrangement approved, or if a petition for a bankruptcy
  Contract and relating to the Services.     order is presented or a bankruptcy order is made against the Customer or if any circumstances
1.12 “Act” means the Telecommunications Act or Acts, or any re-enactment or amendment thereof.     arise which entitle the court or a creditor to appoint a receiver, administrative administrator
1.13 “Difference Access Equipment” means call routing apparatus supplied by Difference     or to present a winding-up petition or make a winding-up order.    
1.14 “Minimum Term” means the minimum duration of the Contract, which unless otherwise expressly 6.4 Conditions 2.2 and 4 and 7 of the Contract shall survive termination of the Contract for any reason
  stated on the Application Form shall be 12 months from when the Customer starts to receive the   6.5 If the Contract is terminated by either party hereto, the customer shall:    
  Services - known as the anniversary date.     a) Pay to Difference all arrears of charges together with any interest payable under the Contract up to
1.15 “Line Rental” means the rental charge for the provision of analogue or digital lines to the Customer’s date of termination.                
  premises.     b) Return to Difference all equipment owned or provided by Difference and/or allow the entry to the
        Customer’s premises for the removal of any Difference  Access Equiptment.    
2. THE SERVICES                          
2.1 a) The Customer shall complete, sign and return to Difference an Application Form or Purchase Order prior to 7. CONFIDENTIALITY                
  Difference agreeing to provide the Services.     The Customer and any User shall at all times keep confidential the terms of this Contract and all 
  b) Difference shall use all reasonable care and skill to provide the Customer with the Services throughout matters relating to the Services, and shall not disclose the same to any third party without the prior 
  the term of the Contract. Difference shall be at liberty to alter the provision of the Services     written consent of Difference.              
2.2 The Customer undertakes to Difference that:                          
  a) The Services will only be used in accordance with the Contract.   8. LIMITATION OF LIABILITY              
  b) Only the Customer and the Users shall use the Services and no other person shall be permitted. 8.1 Difference shall have no liability under this Contract for the acts and omissions of other 
  c) Upon termination of the Contract, no attempt shall be made to use the Services     telecommunications operators.              
  d) The Services Literature and any other instructions regarding the use of the Services as may be 8.2 Save only as is otherwise specified in this condition 8.2, the entire liability of Difference in 
  notified to the Customer by Difference from time to time shall be complied with promptly and      with the Services or this Contract, whether in contract, tort or otherwise or for consequential or 
  deemed to form part of the Contract.     indirect loss, is excluded. Non exhaustive illustrations of consequential or indirect loss would include 
  e) For the duration of the Minimum Term it will route all its inbound, non-geographic and outbound  loss of profit, revenue, contracts or business, damage to property of the Customer or anyone else and 
  calls (including without limitation all its voice, fax and data traffic) via Difference on an      anticipated savings or profits. Difference accepts liability for death or personal injury resulting from 
  exclusive basis. For the avoidance of doubt the Customer acknowledges and accepts that during    it’s negligence and, where the Customer deals as a consumer, Difference accepts liability for 
  the Minimum Term it shall not use any services offered by a third party which are competitive      death or personal injury and for any breach of it’s obligations implied by statute.  
  Condition 2.2 (e) the terms of condition 4.12 shall apply.   8.3 Difference shall not be liable for faults in the Customer’s telecommunications equipment.
2.3 The Customer agrees that at all times during the term of the Contract it shall:   8.4 Difference shall not be liable for any damages whatsoever to property at the Customer’s premises 
  a) Provide access to all appropriate sites for Authorised Persons during the Customer’s normal     from (i) the installation, repair or removal of Difference Access Equipment or associated wiring 
  working hours and allow the removal, installation and maintenance of any Difference       carried out by Difference or by Difference’s contractors or (ii) any reprogramming of the 
  Equipment.     Customer’s existing Least Cost Routing Software unless such damage is caused by Difference or it’s 
  b) Keep it’s telecommunications equipment in good working order and ensure that the equipment   or negligence subject to condition 8.2.            
  complies with all applicable standards and approvals so as to enable Difference to provide the services. 8.5 Dates and times for provision of the Services shall be estimates only and no liability shall accrue to
  c) Provide all reasonable assistance required by Difference to enable it to provide the services.     Difference  for failure to meet any such dates.          
  d) Inform Difference with one month’s prior notice in writing of any premises’ relocation for    8.6 Difference will not be held responsible for any loss due to programming errors or omissions made. 
  telephone number(s) on which the Services are registered.   8.7 In the event of any failure in the Services, Difference  shall not be liable to the Customer for any charges    
  e) Indemnify Difference fully against all losses, liabilities, costs (including legal costs) from     incurred by the Customer should it direct it’s telecommunications traffic to another carrier.
  which Difference may incur as a result of any breach of the Customers obligations under the agreement 8.8 Difference reserves the right not to provide the Services due to any technical limitations in the 
  or misuse of the Services.     telephone system, telephone exchange, or Difference Access       
  f) Pay Difference (at it’s then current published rates) for all call-out visits required if                          
  Difference determines that the problem with the Services is not the fault of Difference or    9. DEPOSIT                    
  Access Equipment has been damaged by the customer.   9.1 Difference may at any time before or after the provision of the Services require a payment
2.4 The Customer undertakes to Difference to ensure that the Services are not:     specified by Difference, a sum to be held by way of a deposit as and against any charges 
  a) For the transmission of any material which is intended to be a hoax call to emergency services or arising from the use of the Services and Difference shall be entitled to offset such deposit against 
  is of a defamatory, offensive, abusive, obscene or menacing character; or     this Contract from time to time including interest due or owing.      
  b) Fraudulently in connection with a criminal offence; or   9.2 Any deposit held by Difference will not accrue interest whatsoever although any deposit (or part 
  c) Otherwise in a manner which constitutes a violation or infringement of the rights of any other     which is held by DIFFERENCE for over one year and which is subsequently repaid to the Customer 
  party; or     may, at Difference’s discretion, attract interest at an amount determined by Difference    
  d) In a manner which allows third parties to interfere with or corrupt the Services in any way; or                          
  e) In any other way which is in breach of the Act or Acts; or   10. ASSIGNMENT                  
  f) Otherwise than for the purposes of a telecommunications system.   10.1 The Customer shall not assign or delegate or otherwise deal with all or any of its rights under the
        Contract.                  
3. DIFFERENCE CORPORATION'S RIGHTS   10.2 Difference shall have the right to assign or otherwise delegate all or any of its rights or   
3.1 Difference shall be entitled to alter any access or authorisation number or method of      hereunder to an Associated Company or other person upon serving one month’s notice in writing to
  Services from time to time and may reprogram the Customer’s equipment as a result.     the Customer.                  
3.2 Difference may suspend the Services to the Customer at it’s sole discretion including but not                           
  the following:   11. FORCE MAJEURE                
  a) if any credit limit between Difference and the customer is breached     Neither Difference or the Customer shall be liable to the other for any loss or damage which may be 
  b) If any term of the Contract is breached (including, without limitation, in the event of a failure to   suffered by the other party due to any cause beyond the first party’s reasonable control including 
  make any payment or to provide any deposit required to be made or provided under the Contract)   drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of 
  c) In order to comply with an order, instruction or request of any government, emergency service   Government, highway authorities, public telecommunication operators or other competent authority, 
  organisation or other competent authority; or     war, military operations, or riot, difficulty, delay or failure in manufacture, production or supply by 
  d) Fraud or attempted fraud is suspected by Difference (in it’s reasonable opinion) in connection    third parties of the Services or any part thereof.          
  use of the Services.                          
3.3 Difference may collect data and information about the Customer’s use of the Services and    12. NO WAIVER                  
  information to (i) companies affiliated with Difference and (II) third parties, but solely for the purposes  Failure by either Difference or the Customer to exercise or enforce any right conferred by the 
  of providing the Services to the Customer.     Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or 
        enforcement thereof or of any other right on any later occasion.    
4. CHARGES AND PAYMENT FOR THE SERVICES                          
4.1 All sums due to Difference  under the Contract shall become due on the date of the relevant invoice and are 13. ENTIRE CONTRACT                
  payable by Direct Debit.     The Contract represents the entire understanding between the parties in relation to the subject matter 
4.2 If the Customer fails to make payment within 14 days of the date of the relevant invoice, without     of the Contract and supersedes all other agreements and representations made by either party, 
  prejudice to it’s other rights hereunder, Difference shall have the right to require the Customer to pay the whether oral or written.                
  sums due on demand.                          
4.3 Time of payment of all sums due to Difference under the Contract shall be deemed to be 14 days from invoice. 14. SERVICE OF NOTICE                
4.4 Difference reserves it’s right to amend it’s charges for the Services from time to time.     Any notice or invoice or other document which may be given under the Contract shall be deemed to 
4.5 Difference shall use its best endeavours to bring to the attention of the Customer any variation     be duly given if Left or sent by post (whether by letter, or, where the parties agree, by magnetic tape 
  prior to the implementation.     or any other form), telex or facsimile transmission (subject to the sender’s machine producing 
4.6 Without prejudice to Difference’s rights, to treat the non-payment as a repudiative breach of the Agreement. confirmation that all pages have been sent) or, where the parties expressly agree, by electronic mail 
  Difference reserves the right to charge interest on outstanding amounts until payment is received in  to the registered office of the party to be served or any other address notified by the party to be 
  full at a rate equal to 4% per annum above the Barclay’s Bank Plc base lending rate as current from  served to the other party in writing as an address to which notices, invoices and other documents 
  time to time whether before or after judgement. Interest shall continue to accrue notwithstanding    may be sent.                  
  termination of the Contract for any cause whatsoever and is deemed to accrue on a day to day basis from and                    
  including the date for payment and the condition 4.1.   15. GOVERNING LAW                
4.7 Difference reserves the right to charge for administrative costs incurred by Difference in pursuing late payers.     The Contract shall be governed and construed and interpreted in accordance with Scottish law and 
  The clients company directors guanantee for the payment of all invoices raised by the suppliers.      the parties submit to the jurisdiction of the Scottish courts as regards any claim, matter or dispute 
4.8 All sums due to Difference under the contract are subject to Value Added Tax (“VAT”), and any    arising out of or relating to the Contract or any document entered into pursuant to the Contract.
  applicable taxes, levies or charges which from time to time may be introduced.                          
4.9 The Customer shall be liable for all charges arising from the use of the Services by any person                          
  utilising the Customer’s registered Services (with or without the Customer’s autherisation).                          
4.10 Details of the Contract and the conduct of the Account may be registered with a licensed Credit                          
  Reference Agency. Information thus registered may be used to help make credit decisions,                          
  occasionally fraud prevention or the tracing of debtors.   Registered Office - Difference Corporation Ltd, Station Masters Office, South Queensferry, Edinburgh, EH30 9JP
4.11 In the event of any error or omission in a Difference  invoice for any period, Difference may issue a  2nd Office - Difference Corporation Ltd, Merlin House, 1 Langstone Business Park, Newport, NP18 2HJ
  invoice at a later date.   Registration No. SC226781                
4.12 In the event of the Customer obtaining any services from a third party which are competitive with or VAT No. GB793934869                
  substantially similar to the Services during the Minimum Term or if there has been a material breach  Contact us -                     
  of the Contract, the Customer accepts that Difference shall be entitled to invoice the Customer during  Tel: 0844 493 1100                  
  each month of the remainder of the Minimum Term an amount equal to either:   Fax: 0844 493 1199                  
  (a) The average of the monthly amounts invoiced by Difference to the Customer prior to the breach by the Web: differencecorp.com                
  Customer of Condition 2.2 (e) or (b) The actual amount payable by the Customer, whichever is higher. Email: sales@differencecorp.com