AllTalk (the “Service”) is a self-service platform for the provision of Telephony and Communication Services to be managed by the Customer and its Users, accessed by Callers. The Service is operated and owned by Cellhire Plc (Company number 02159836) whose registered office is Park House, Clifton Park, York, YO30 5PB, United Kingdom. These Terms & Conditions and our Privacy Policy constitute the full legal agreement between you (the “Customer”, “you” and “your”) and Cellhire Plc (hereafter referred to as “We”, “Our” and “Us”).

IMPORTANT INFORMATION:

PLEASE NOTE THAT THE SERVICE DOES NOT SUPPORT USE FOR EMERGENCY SERVICE CALLS. 

THE USE OF THIS SERVICE WILL RELY ON THE AVAILABILITY OF YOUR OWN DEVICES, HARDWARE, CELLULAR PHONE DATA NETWORK AND INTERNET PROVIDER AT ALL TIMES – ANY RESTRICTIONS IN ANY OF THE ABOVE SERVICES OR DEVICES WILL ALSO LIMIT THE QUALITY OF THE SERVICE.

The terms, conditions, and notices contained in these Terms & Conditions must be agreed to and accepted without qualification or amendment in order to obtain the Service as defined below. By using the Service, you hereby agree in full to all terms and conditions of this Agreement. If you do not agree to these terms and conditions, then please do not access or use the Service.

If you begin the sign-up process but fail to complete the process, we may contact you in an effort to help you complete the process. You hereby authorise us to contact you in this circumstance even if you ultimately decide not to sign up to the Service. 

1. Definitions

1.1 In this Agreement the following terms shall have the following meanings unless the context requires otherwise:

Act: means the UK Communications Act 2003.

Agreement: shall mean this document between Us and the You.

Application: means AllTalk and any other websites, administration tools and/or software applications to be provided by us, or our authorised partners, to you.

Artificial Inflation of Traffic: means any situation where the Service experiences unusual call patterns that are disproportionate to the overall amount of usage as would reasonably be expected.

Business Day: means any day which is not a Saturday or Sunday or a public holiday in England.

Call: means a signal, message, voicemail or communication which can be silent, visual (including text and data) or spoken.

Caller: a person who ultimately uses the Service through the Customer.

Confidential Information: has the meaning set out in clause 14.1.

Customer Information: means any information, including (without limitation) any routing destinations, images, audio, audio-visual, text or other information or content that relates to the Customer’s use of the Service.

Controller: has the meaning set out in GDPR.

Data Protection Legislation: in relation to any Personal Data which is Processed in the performance of this Agreement, the Data Protection Act 1998 and EU Data Protection Directive 95 / 46 / EC (prior to 25 May 2018), GDPR (on and after 25 May 2018), the Investigatory Powers Act 2016, Telecommunications (Lawful Business Practice), the Privacy and Electronic Communications Directive 2002 / 58 / EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003 / 2426), in each case together with all laws implementing or supplementing the same and any other applicable or equivalent data protection or privacy laws, and all other applicable law, regulations and codes of conduct relating to the processing of personal data and privacy, including the guidance and codes of practice issued by a relevant Supervisory Authority.

Data Subject: has the meaning set out in GDPR.

Emergency Service Call: means a Call from a Caller to an emergency service made by dialling 999, 911, 112 etc.

GDPR: the General Data Protection Regulation (EU 2016/679).

Inappropriate Content: any content that infringes any applicable laws, regulations or third party rights (such as, for example, material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights or the Act).

Intellectual Property Rights: means all intellectual property rights (including without limitation, patents, trademarks, copyrights, designs, rights in databases, user data, rights in and to know-how and Confidential Information (in each case whether registered or unregistered)) and any and all applications for the same.

International Number: means a Number outside of the United Kingdom which is available for international regions at an additional monthly charge.

Insolvency Proceedings: means going into administration, administrative receivership, liquidation or receivership or becoming unable to pay debts as they fall due within the meaning of section 123 of the Insolvency Act 1986 or suffering any similar or analogous action in consequence of debt.

Network: means the network provided by us or any other third-party network supporting the Service.

Number: means any number specifically requested by or allocated to the Customer for the provision of the Service to Callers and includes VIP and International numbers.

Personal Data: has the meaning set out in GDPR and relates only to personal data, or any part of such personal data, in respect of which you are the Controller and in relation to which we are providing services under this Agreement.

Personal Data Breach: has the meaning set out in GDPR.

Premium Features: means any additional features and bolt-on extras you may add to your Service from time to time.

Processing and Process: have the meaning set out in GDPR.

Service: the service provided to you by us as described above.

Service Fee: means any charge in respect of the Service levied by us from time to time to you.

Software: any software used by us, or any party acting on our behalf in fulfilling its obligations under this Agreement or otherwise.

Special Categories of Personal Data: those categories of data listed in Article 9(1) GDPR.

Supervisory Authority: means (a) an independent public authority which is established by a Member State pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Legislation.

Third Party Information: means information, audio, video, graphics, sound, music, photographs, software, data, databases, records, and any other materials (in whatever form) not owned or generated by or on behalf of the Customer, published or otherwise utilised or made available using the Service.

Users: means any user within your business who you authorise to use this Service.

Usage Rates: means the charges incurred by you calculated against the usage based pricing which can be accessed on request from your AllTalk Account Manager.

VIP Number: means a Number available at an additional monthly charge to normal Numbers and it is purchased for a minimum period of 12-months in accordance with clause 5.8. 

 1.2 Clause and schedule headings do not affect the interpretation of this Agreement.

 1.3 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this Agreement.

 1.4 Words in the singular include the plural and in the plural include the singular.

 1.5 A reference to a particular law is a reference to it as it is in force at the date of this Agreement taking account of any amendment, extension, application or re-enactment and including any subordinate legislation in force at the date of this Agreement made under it.

2. Our Obligations

2.1 We shall provide the Service to you in consideration for the due and timely fulfilment of the Customer's obligations under this Agreement.

2.2 Use of the Service is at all times subject to the terms and conditions of this Agreement and by using the Service, the Customer confirms their acceptance of, and agrees to be bound by, this Agreement.

2.3 We reserve the right to amend or alter in any way these terms and conditions or charges for the Service at any time. We shall make reasonable endeavours to notify the Customer of any such changes, including making notice of the same to the Customer, but any change shall take effect even if the Customer fails to receive such notice.

2.4 We shall provide reasonable endeavours to manage and maintain a professional Service, Network and Application.

2.5 We shall grant you a non-exclusive, non-assignable or transferable right to use the Service in accordance with these terms.

2.6 We shall provide support to you for the Service via our helpdesk and online knowledgebase.

3. Customer Obligations

3.1 The Customer may only use the Service for lawful purposes and at all times in accordance with the Act.

3.2 The Customer will not, nor will the Customer authorise or permit any other person to, use the Service or the Application:

3.2.1 to send or receive any Inappropriate Content or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offence or otherwise be unlawful;

3.2.2 to create any Artificial Inflation of Traffic in anyway;

3.2.3 to sell, or offer to sell, goods or services which are in violation of any laws, regulations, or codes of practice. The Customer shall take such corrective action as we may require in such circumstances promptly following notification from us.

3.2.4 to pretend to be a party which it is not or use the Service to falsely represent another party.

3.3 The Customer warrants that Customer Information is and will remain accurate and will not include any Inappropriate Content or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offence or otherwise unlawful including the breach of any Intellectual Property Rights of any other person. We reserve the right to remove such content from the Service, Application and Network where, in our sole discretion, we suspect such content to be in breach of this clause 3.3.

3.4 The Customer will be solely responsible for the accuracy, completeness, design, creation, maintenance, and updating thereof of all Customer Information. We shall not be liable for any errors or inaccuracies in any Customer Information.

3.5 The Customer shall be responsible for obtaining all necessary licenses and consents required to use Service and the Customer warrants that such licences and consents have been obtained and will be subject in this regard to the indemnity at clause 11.

3.6 The Customer shall provide us with any assistance we require in relation to any query or enquiry in relation to the Service howsoever arising.

3.7 The Customer shall ensure it does not use the Service:

3.7.1 excessively and beyond what we deem is reasonable but will use its reasonable endeavours to actively promote the Service to its Callers;

3.7.2 in a way which imposes an unreasonable or disproportionately large load on our infrastructure or the Service;

3.7.3 for automated, high volume or otherwise excessive call-forwarding, auto-dialling and/or call-blasting activities; and/or

3.7.4 to make automated, continuous, extensive or excessive calls using the Service beyond what we consider (at our absolute discretion) to be reasonable business use.

3.8 The Customer will not sell or re-sell the Service to any third party without the written and express permission of AllTalk.

3.9 The Customer will not use or associate the Service with any unsolicited telemarketing activities (“Spam”) and agrees to pay us a fee of £25 for each Spam complaint received by us. This will be charged for and applied to your Usage Rates and charged to your account used to register for the Service.

3.10 The Customer warrants that the name, email address, phone numbers, postal address and payment information (where required upfront) that the Customer provides when the Customer registers for the Service is correct and the Customer agrees to update its account immediately in the event of any changes to such details.

3.11 The Customer warrants that it possesses the legal right and ability to enter into this Agreement and to use the Service in accordance with this Agreement.

3.12 The Customer confirms that the person contracting on behalf of the Customer has authority to bind the Customer in relation to the Customer’s purchase of the Service.

3.13 Any breach of this clause 3 by the Customer shall be deemed to be a material breach of this Agreement and shall entitle us to immediately terminate the Agreement and, for this purpose, it shall be irrelevant whether the Customer was aware of the content of any material so transmitted or not. Notwithstanding and in addition to clause 7, we may suspend the Service without notice with immediate effect if, in our reasonable opinion, the Customer is in breach of this clause 3 and we may refuse to restore the Service until the Customer gives us an acceptable assurance that there will be no further contravention.

3.14 The Customer is responsible for notifying any applicable terms of the Service to its Users and for ensuring that its Users comply with such terms.

3.15 In the event that we suspect that the Customer has breached this Agreement, at our absolute discretion we reserve the right to suspend and/or terminate the Customer’s access to the Service immediately without notice.

3.16 Each Customer must have their own AllTalk account and sharing of user accounts is not permitted in any circumstances.

4. Warranties

4.1 Other than as cannot be excluded in law, we expressly exclude all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose in relation to the provision of the Service.

4.2 We do not warrant that the Service will be error and or virus free or operate without disruption or is compatible with all equipment and software configurations.

4.3 The full extent of our liability in respect of the provision of the Service is as set out in clause 9.

5. Service Specific Conditions

5.1 Number allocation - once you have registered for the Service you shall be allocated or can select from us your Numbers at random to use in conjunction with the Service and for your Callers to contact you on in accordance with the terms of this Agreement.

5.2 Number usage – where a “Free Trial” service is concerned, if you do not use the Service or your Number for a period of over 1-month we reserve the right to cancel the Service and re-allocate your Number back to stock for potential re-use by another party in the future.

5.3 Number testing - It is your responsibility to ensure that the Number works correctly when being diverted and all equipment you have is in full working order.

5.4 Call recording – If the User Account subscribes for call recording and subject to termination of this Agreement we will store any recorded Calls for as long as you state you need them accessible within the Application of the Service for that period only. Any recordings stored will be held in accordance with Data Protection terms specified in clause 12.

5.5 Voicemail recording – Any recordings stored will be held in accordance with Data Protection terms specified in clause 12 and then deleted.

5.6 Emergency calling – you will NOT be able to make Emergency Calls from the Service.

5.7 Number porting into the Service – should you wish to port any existing Number into the Service then you must contact us via support@AllTalk.app to complete the required consent paperwork to complete this process, we will then handle this for you. There will be an admin charge payable of at least £20 per number but this will be agreed with you in writing prior to any number being ported.

5.8 Number porting away from the Service – should you wish to port any existing Numbers away from the Service then you must contact your new service provider to request this. We will typically receive instruction from them within 10-days to action this request. Prior to contacting your new provider, you will need to contact us at support@alltalk.app in order for us to provide the information necessary for you to submit to your new provider when initiating the port. We cannot however guarantee that your new service provider will have the ability to port in your Number. There will be an admin charge payable of at least £10 per Number.  Any residual contractual obligations on AllTalk licences not yet at maturity will become payable in full from the date the number is ported out, chargeable in full month increments.

5.9 Support – we will provide you with support facilities for the Service through the Application, however, should you need to raise a support query with us directly email support@alltalk.app.

5.10 Service related communications - we will send you updates about the Service, these will include new feature updates, service updates, support updates and other general communications at our discretion. If you do not want to receive these, you can opt-out at any stage.

5.11 Marketing communications – we will occasionally send you carefully selected marketing communications, if you do not want to receive these you can opt-out at any stage. Opting out of these marketing communications will not impact any Service related communications and you will still receive these.

5.12 We reserve the right to block call termination without notification, to destinations where we consider the termination rates to be excessive and are an increased risk for fraudulent activities. These include destinations where malicious activities such as excessive call-forwarding, auto-dialling and/or call-blasting activities are prevalent.

6. Charges

6.1 You agree to pay the Service Fee for your use of the Service at the prices disclosed in the Application.

6.2 You acknowledge that prices disclosed could be subject to change and we will do our best to notify you of such changes and providing you as much notice as possible. We, as additional features to the Service, will add to the things which you can pay for within the Service Fees. These will always be features you are in control of and you can use them or not as you prefer.

6.3 All pricing disclosed on the Application will be invoiced and paid in the currency you choose when signing up for the Service, and is exclusive of value added tax / sales tax or other import or export duties or taxes (if applicable) and this will be added at the point of payment.

6.4 All charges and VAT/sales tax invoices for the Service will be emailed to you.

6.5 When you first sign-up to the Service and subject to legitimate credit checks we may ask you for a deposit on the account and will at our discretion agree the appropriate payment mechanism for your Account. Credit will only be granted to Corporate (Business) customers with a high credit rating and a strong payment record. 

6.6 Invoices will be for periods of full months and will be issued automatically via email to the Account Holder. Changes made to your subscription during your monthly billing period will be enacted from the commencement of the new billing period and all packages will charge in full month increments.

6.7 We will not issue refunds for any reason on the Service.

6.8 If a payment card fails to make a complete payment to us or we experience any payment card fraud and/or chargebacks then we have the right to immediately suspend and/or terminate the Customer’s account and the Service shall immediately cease.

6.9 If the Customer subsequently makes a valid payment to us then the Service will be re-instated and we shall make all reasonable endeavours to restore all data collected by us for the Service provided to the Customer prior to a termination. If the Customer does not make a payment within 2 weeks then all such Customer data shall be deleted by us and the account terminated and Number(s) reclaimed by us and returned to stock for potential re-use by another person.

6.10 The Customer must not abuse or manipulate any free trial period and/or the billing period to avoid paying for any Service Fees due to us. If we suspect, at our absolute discretion, that the Customer is abusing such periods, we reserve the right to suspend and/or cancel the Customer’s use of, and access to, the Service without notice.

7. Security

7.1 The Customer shall not attempt to circumvent system security or access the source code of the Software or the Application of the Service.

7.2 The Customer shall keep confidential any passwords or other security information relating to the Software or the Application of the Service.

7.3 The Customer is responsible for the security and proper use of all user IDs, passwords, used in connection with the Service and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised persons.

7.4 The Customer must immediately inform us if there is any reason to believe that a user ID or password issued by us has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.

7.5 We reserve the right to suspend access to the Service if at any time we consider that there is or is likely to be a breach of security or if the Customer fails to comply with our instructions or requests in relation to security matters.

7.6 We reserve the right (at our sole discretion) to require the Customer to change any or all of the passwords used by the Customer in connection with the Service.

7.7 End-User Identification submission may be necessary for the activation of DID (Direct Inbound Dialling) numbers required for inbound and outbound calls to the PSTN (Public Switched Telephone Network). The regulations for ID submission vary significantly across international jurisdictions and users will be mandated to comply with these regulations in accordance with local legislation. If AllTalk requests End-User Identification for lines in active use the User must submit this via the AllTalk Secure ID Portal within 24 hours from the point of request.  AllTalk reserves the right to terminate service on a DID in the event that the end user fails to comply with the requirements to provide appropriate ID.

8. Term and Termination

8.1 To terminate the Agreement the Customer must either cancel the account via email to support@AllTalk.app. Any residual contractual obligations will crystallise on termination of the Agreement if the contract term is not at maturity.

8.2 If you terminate the Agreement of your own choosing then you will lose your Number(s) permanently.

8.3 On termination of the Service any balance due on termination will be invoiced and collected in accordance with clause 6.

8.4 We may terminate this Agreement, without notice, if you are in breach of any part of this Agreement or suffer Insolvency Proceedings, although your obligation to pay then current charges shall survive termination of this Agreement.

9. Limitation of Remedies and Liability: Your attention is particularly drawn to this clause

9.1 Nothing in this Agreement shall operate to exclude or limit either party’s liability for:

9.1.1 death or personal injury caused by its negligence; or

9.1.2 fraud; or

9.1.3 any other liability which cannot be excluded or limited under applicable law.

9.2 We shall not be liable to the Customer or any third party for any indirect, incidental, sequential or consequential loss or damages arising under this Agreement (including without limitation) loss of profits, business, earnings or opportunity arising under or in connection with this Agreement.

9.3 Other than as stated in clause 9.1, we shall not be liable to the Customer in contract, tort (including negligence) or otherwise in relation to this Agreement.

9.4 The provisions of this Agreement and the rights and remedies of the parties under this Agreement are cumulative and are without prejudice and in addition to any rights or remedies a party may have at law or in equity.

9.5 The Customer accepts that we are neither obligated nor able to edit, review or modify Customer Information or Third Party Information and that we do not examine the use to which the Customer puts the Service. However, we reserve the right to remove any Customer Information or Third Party Information if we reasonably believe such information breaches any laws or regulations or any third party´s rights.

9.6 We exclude all liability of any kind in respect of Customer Information, Third Party Information or any other material which can be accessed using the Service and are not responsible in any way for any goods (including software) or services provided advertised, sold or otherwise made available by means of the Service.

10. Intellectual Property Rights

10.1 All Intellectual Property Rights in Customer Information ("Customer Intellectual Property") are and shall remain the property of the Customer and its licensors.

10.2 Except as provided for at clause 10.1, all Intellectual Property Rights in the Service and/or the Software, Application, Services and any supporting or associated material relating to the Software, the Application or the Service developed by us in fulfilling our obligations under this Agreement or in connection with this Agreement, whether the Software, the Application or the Service or material is particular to the Customer or not, and any other material provided to or made accessible to the Customer by us as a result of this Agreement ("Our Intellectual Property") are and shall remain our sole property.

10.3 The Customer grants to us a non-transferable, royalty free licence to use the Customer Intellectual Property for the purposes of performing our obligations under this Agreement.

10.4 We grant the Customer a non-transferable, non-exclusive, royalty free licence to use Our Intellectual Property for the purposes of performing your obligations to us under this Agreement.

11. Third Party Transactions

11.1 The Customer shall remain solely responsible for any transactions of any kind entered into between the Customer and Users or any other third parties accessing or acting in reliance on the Service, or any information on the site. We will not be a party to or in any way responsible for any transaction between the Customer and a Buyer or other third party.

11.2 The Customer agrees to indemnify and keep us indemnified from any claim brought by a third party resulting or arising from the Customer´s use of the Service, any breach of its obligations under clauses 3 and 4 of this Agreement by the Customer, our hosting of the Service, or any claim brought by a third party resulting or arising in any way from any Customer information or any other material provided by the Customer to us.

11.3 The indemnities at clause 11.2 includes all costs, expenses, damages, awards, fees (including reasonable legal fees) and judgments finally awarded against us arising from any relevant claims. Furthermore, the Customer agrees it will provide us with notice of such claims, gives us full authority to defend, compromise or settle such claims and to give all reasonable assistance necessary to defend such claims, at the Customer´s sole expense. We agree that any actions taken in respect of such claims will be taken in consultation with the Customer.

12. Data Protection

12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and we the Processor of any Personal Data. We Process Personal Data in accordance with the following scope, nature and purpose:

Nature and purpose of the processing of Personal Data	In order that we can provide our Services to you in accordance with this Agreement
Subject matter of the Processing of Personal Data	For our provision of Services to you as our customer, as set out in this Agreement.
Duration of the Processing of Personal Data	The term of our contract with you in accordance with this Agreement, until we delete that data in accordance with this Agreement.
Categories of Personal Data being shared between you and us	Data relating to individuals provided to us by you or any person you authorise (or direct) to access or use the Services (or at your direction).
Types of Data Subject in respect of whom we Process Personal Data	The Data Subjects in respect of whom you use our Services and data is sent (or provided) to us through those Services, by you, at your direction or with your authorisation.

12.3 Each party confirms that it holds, and during the term of this Agreement will maintain, all registrations and notifications required in terms of the Data Protection Legislation which are appropriate to its performance of the obligations under this Agreement.

12.4 We will:

12.4.1 Process Personal Data only on documented instructions from you, unless required to do so by Data Protection Legislation or any other applicable law to which we are subject; in such a case, we shall inform you of that legal requirement before Processing, unless that law prohibits us to so inform you;

12.4.2 ensure that persons we authorise to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

12.4.3 take all measures required pursuant to Article 32 of the GDPR in respect of security of Processing;

12.4.4 subject to clause 12.4.1 and clause 12.5, not commission any subcontractor in respect of Processing Personal Data without your prior written consent (such consent not to be unreasonably withheld or delayed), and ensure that any such subcontractor we commission complies with the provisions of this clause 12 as if it was a party to this Agreement;

12.4.5 taking into account the nature of the Processing, assist you by putting in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject's rights laid down in Data Protection Legislation, to the extent that such requests relate to this Agreement and our obligations under it;

12.4.6 assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of Processing the Personal Data and the information available to us;

12.4.7 at your option, delete (to the extent practicable) or return all the Personal Data to you after termination of this Agreement or otherwise on your request, and delete existing copies (to the extent practicable) unless applicable law requires our ongoing storage of the Personal Data;

12.4.8 make available to you all information necessary to demonstrate our compliance with this clause 12.4.8, and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you; and

12.4.9 inform you immediately if, in our opinion, an instruction from you infringes (or, if acted upon, might cause the infringement of) Data Protection Laws. Subject to clause 9.1, we shall not have any liability in respect of any instruction from you that breaches (or causes a breach of) Data Protection Legislation to the extent that we could not reasonably have been aware, or could not reasonably be expected to have been aware, that such instruction would breach (or cause a breach of) Data Protection Legislation.

12.5 Each party will notify the other party as soon as is reasonably practicable if it becomes aware of a Personal Data Breach relating to either party’s obligations under this Agreement.

12.6 You shall undertake appropriate data protection impact assessments to ensure that Processing of Personal Data complies with Data Protection Legislation. We will provide you with reasonable assistance, where necessary and upon your request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.

12.7 It is your responsibility to ensure that Personal Data is dealt with in a way that is compliant with Article 5(1) of the GDPR.

12.8 You shall ensure that:

12.8.1 you are able to justify the Processing of Personal Data in accordance with Article 6(1) of the GDPR (including, where applicable, obtaining any and all consents of Data Subjects required in order to commence the Processing), and that you have recorded or documented this in accordance with the record keeping requirements of the GDPR;

12.8.2 where Personal Data falls within the Special Categories of Personal Data, Article 9(2) of the GDPR applies to that Personal Data before Processing takes place;

12.8.3 where Article 9(2) of the GDPR does not apply to any Personal Data falling within the Special Categories of Personal Data, no such data will be sent to us; and

12.8.4 you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of this Agreement.

12.9 In the event that we:

12.9.1 comply with your instructions in respect of Processing, we shall not have any liability (subject to clause 9.1) for any damage caused by Processing that Personal Data, or for any consequences in the event that such Processing otherwise infringes Data Protection Legislation, to the extent that such damage or consequences result from our compliance with such instructions; and/or

12.9.2 refuse to comply with your instructions in respect of Processing due to concerns that compliance will cause a breach of Data Protection Legislation, we shall not have any liability (subject to clause 9.1) for any failure to follow such instructions.

12.10 Each party agrees to indemnify, and keep indemnified and defend at its own expense, the other party, against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable, due to any failure by the first party or its employees or agents to comply with this clause 12.

12.11 You authorise our engagement of third parties as subcontractors for the purposes of Processing; in the event that we contract with such subcontractors in accordance with the requirements of Data Protection Legislation, your entry into this Agreement will constitute your prior written consent to that subcontracting by us in respect of the relevant Processing. Information about the subcontractors that we engage for Processing purposes can be found at AllTalk.app/privacy.

12.12 Please see our Privacy and Cookies Policy which forms part of this Agreement and set out how we Process certain personal data (as defined in GDPR) as a Controller.

12.13 We may, at any time on not less than 30 days’ notice, revise this clause 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

13. Force Majeure

If either party is unable to perform any obligation under this Agreement because of a matter beyond that party's reasonable control including, without limitation, lightning, flood, exceptionally severe weather, fire, explosion, war, acts of terrorism, civil disorder, industrial disputes (whether or not involving employees of either party), breakdown of plant or machinery, default of suppliers or sub-contractors or acts of local or central government or other competent authorities, or events beyond the reasonable control of suppliers to either party, that party will have no liability to the other for that failure to perform.

14. Confidentiality

14.1 Each party shall keep confidential (and ensure that its employees keep confidential) all information concerning the business, finances, technology, affairs, clients, marketing plans of the other party and other information which is identified as such or is confidential by its nature (including, but not limited to, the terms of this Agreement) ("Confidential Information").

14.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

14.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, or in the case of us 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.

14.4 The obligations set out in this clause 14 shall not apply to Confidential Information which the receiving party can demonstrate, with written evidence, came into the public domain otherwise than through a breach of this clause 15 or which is required by law to be disclosed.

14.5 The obligations of confidentiality in this clause 14 shall not be affected by the expiry or termination of this Agreement, but will remain in effect for 2 years after the termination of this Agreement.

15. Notices

A notice given under this Agreement:

15.1 shall be in writing in the English language (or be accompanied by a properly prepared translation into English);

15.2 shall 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 such other address as may from time to time be notified to the other party in writing.

15.3 Any notice given under this clause 15 shall be deemed to have been received:

15.3.1 if by email, on receipt of the email subject to receipt of formal written confirmation in due course; or

15.3.2 on the date of delivery if delivered by hand prior to 5.00 pm on a Business Day, otherwise on the next Business Day following the date of delivery; or

15.3.3 on the second Business Day from and including the day of posting in the case of pre-paid first class post.

16. Assignment

16.1 The Customer will not assign, resell, sublease or in any other way transfer the Service (or any element thereof), or any of its rights or obligations under the terms of this Agreement without our prior written consent.

16.2 Contravention of this restriction in any way, whether successful or not will entitle us to terminate the Service and/or the Agreement immediately.

16.3 We may assign or transfer its rights or obligations under this Agreement by written notice to the Customer.

17. Entire Agreement

17.1 This Agreement and our Privacy Policy sets out the entire agreement and understanding between the parties, it supersedes any previous agreement between them in relation to the subject matter of this Agreement and no agreements, promises, assurances, warranties, undertakings, representations, statements or inducements, oral or written, not contained herein shall bind either party.

17.2 You acknowledge that in entering into this Agreement you do not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement [and any agreement referred to herein/ our Privacy Policy, Terms of Application Use and Acceptable Use Policy].

17.3No person or undertaking that is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement. 

17.4 The Customer may not vary this Agreement without the written consent of us.

17.5 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.

17.6 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.

17.7 Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting enter party as agent of the other for any purpose whatsoever. 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.

17.8 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.

17.9 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.