1 Definitions
"Act" means the Communications Act 2003 and includes any amendments to the Act that may be made from time to time.
"Account" means the record of all charges due from a customer.
"Agreement" means the Agreement between NodeMax and the Customer.
in respect of the services incorporating these terms and conditions.
"Charges" means the Charges payable in respect of the services (as amended from time to time in accordance with these Terms and Conditions) as set out in the Customer Order Form or as otherwise notified to the Customer before they are incurred.
"Customer" means the party named as such on the Customer Order Form to whom NodeMax agrees to provide services and by whom charges are payable.
"Customer Order Form" means NodeMax's Online or Paper Customer Order Form completed by the Customer.
"End User" The End User is the Individual or Organisation using a Number for Inbound Call Services such as NTS.
"Initial Connection" means the time and date when the services are first made available to the Customer.
"Number" means a NodeMax telephone number (including Premium Rate Numbers) which is allocated to a Customer or End User.
"NTS" Number Translations Service; when someone calls a number it is routed to another number (Land line or Mobile).
"PhonePayPlus" means the UK regulatory body for all premium rate charged telecommunications services.
"OFCOM" means the Office of Telecommunications.
"Operator" means the provider of access to the Telecommunications Network.
"Order" means a Customer's order for services made on a Customer Order Form.
"Otelo" means the Office of the Telecommunications Ombudsman.
"Premium Rate Number" means the telephone number allocated to a customer for the purpose of enabling the Customer to provide Premium Rate Services.
"Premium Rate Services" means telephone services providing information, advice, entertainment or any other services defined from time to time by PhonePayPlus as being Premium Rate Services.
"Revenue" means sums payable by NodeMax to the Customer in respect of Premium Rate Services.
"Routing" is sometimes referred to as forwarding, transferring and diverting. Routing means that a call to one of our numbers is delivered to a destination such as a landline, mobile or international number. Calls and Data can also be routed to a SIP, IAX or H.323 destination for Voice over IP purposes.
"Services" means connection to the Telecommunications Network, provision of telephone numbers and other telecommunications services as set out in one or more Customer Order Forms for the Customer or otherwise notified in writing by NodeMax to the Customer.
"Destination" means the destination telephone number or Email Address where we Route Calls or Faxes to.
"Telecommunications Network" means the public and private telecommunications systems accessed by the Telephone Number or by which the Services are made available.
"Telephone Number" means the telephone number (including Premium Rate Numbers if applicable), allocated to a Customer.
"NodeMax" means NodeMax Limited or any subsequent service provider that takes over the Services and/or the Customers.
"NodeMax Website" means the website at URL www.tndw.co.uk or any subsequent or additional URL as NodeMax (or any subsequent service provider that takes over the Services and/or the Customers) may determine.
2 Provision of Services
2.1 NodeMax agrees to provide Services to the Customer on the terms and conditions of this Agreement once NodeMax has accepted the Customer's Order. NodeMax will have accepted the order upon the Initial Connection.
2.2 Numbers ordered via the NodeMax's Web site or Online Control Panel will be connected immediately after the customer has successfully completed the order. Intelligent Network services will usually be set up within 48 hours after receipt of the Order. NodeMax will notify the Customer if this is not the case.
2.3 The customer recognises that the service is not guaranteed to be "continuous" and that there may be periods of time when the service is unavailable for operational or other reasons.
2.4 NodeMax Limited's services are provided for business use only and for the customer to use NodeMax Ltd's business voice services. NodeMax Ltd do not sell numbers for the sole purpose of the customer porting the numbers away with out any intention of using NodeMax Ltd's business voice services. As part of Ofcom's National Numbering Plan and to manage inactive numbers, NodeMax Ltd reserves the right to withdraw numbers that produce less than 10 minutes of call traffic a month for three consecutive months.
2.5 NodeMax Ltd may amend the Terms and Conditions of the Agreement if new legislation's or regulatory bodies make it necessary. The Customer indemnifies NodeMax Ltd against any subsequent prefix or other numbering changes imposed by Ofcom, ICSTIS, Networks Operator or regulatory body.
2.6 The minimum period for the Services is:-
2.6.1 "Pay As You Go" - 1 Month for Pay as You Go Service
from the Initial Connection unless stated otherwise (the "Minimum Period").
2.6.2 "Monthly Pre Pay with Inclusive Minutes" - 12 months from the Initial Connection unless stated otherwise (the "Minimum Period").
2.6.3 This Agreement will continue after the expiry of the Minimum Period unless and until: It is terminated by either party giving at least one month's written notice to terminate the Agreement expiring on the first or any subsequent anniversary date of the Initial Connection. In the case of notice given by the Customer, the notice shall not become operative until the Customer receives, by way of acknowledgement, a cancellation acceptance form signed by an officer of NodeMax on NodeMax's Letterhead; or
2.6.4 It is terminated in accordance with clause 10 below.
2.7 The Services are supplied subject to all limitations of the Telecommunications Network including the risk of imposed prefix or number changes. In particular NodeMax is unable to guarantee that all overseas systems will be able to access the Customer using the Telephone Number or that telephone keypads will use the same alphanumeric combinations as are currently used in the UK. NodeMax will not be able to guarentee that third party networks will be free from faults which may cause access problems to customer numbers. NodeMax will however work with third party carriers to resolve their routing problems.
2.8 Each order will with these terms comprise a separate contract between the parties unless the order specifies that it is an amendment to an existing contract.
2.9 In order to provide any type of Service, NodeMax requires the Customer or End User to provide an Address and Land line Telephone Number. The address can be a company registered office address, a company directors home address or the home address of the individual ordering the service, PO Boxes cannot be used.
2.10 Where an Order covers more than one Telephone Number each Telephone Number shall be deemed the subject of a separate and severable Agreement.
2.11 Where the Customer's name or if applicable company registered number on the Customer Order Form is incorrect or incomplete, the Customer agrees that NodeMax may treat as being the Customer the individual or organisation that paid the initial service charge for the Services.
2.12 NodeMax or any subsequent service provider that takes over the Services and/or the Customers has the right to change, amend or modify the Services, the Charges and the Terms and Conditions upon the provision of notice to the Customers by email to the email address provided to NodeMax or by publication of the changes, amendments or modifications on the NodeMax Website. Customers are responsible for regularly reviewing such information to obtain timely notice of such changes, amendments or modifications. Continued use of the Services or non-termination of the Services after changes, amendments or modifications are sent to the Customer's email address or are posted on the NodeMax Website constitutes Customer's acceptance of the Services, Charges and/or Terms and Conditions as changed, amended or modified.
3 NodeMax's Responsibilities
3.1 NodeMax will use reasonable endeavours to provide the Services but NodeMax shall not be liable for any failure resulting from factors outside NodeMax's control. In particular NodeMax is not responsible for the operation of the Telecommunications Network.
3.2 NodeMax reserves the right from time to time to improve or alter the Services as it deems appropriate.
3.3 NodeMax will provide an after sales service and help desk contactable by telephone.
4 NodeMax's Liability
4.1 NodeMax does not exclude or restrict any liability to the Customer for death or personal injury attributable to its own negligence or that of its employees or agents.
4.2 NodeMax shall exercise reasonable skill and care in the provision of the Services.
4.3 Except as stated expressly otherwise in this Agreement, in relation to the provision of Services, NodeMax shall have no obligation, duty or liability in or for contract, tort (including negligence and breach of statutory duty) or otherwise and all other conditions, warranties, terms representations and undertaking, express or implied (whether they are implied by statute, common law or in any other way) are excluded to the fullest extent permitted by law.
4.4 Where any Service has been continuously unavailable to a Customer for a continuous period of more than 7 days (the "Unavailable Period") after the fault has been reported and not as a result of any action or omission of the Customer or any event beyond the reasonable control of NodeMax the Customer may apply to NodeMax for a rebate of any time based Charges in respect of the unavailable Period and NodeMax shall allow the Customer a proportionate rebate of such time based charges. NodeMax shall have no other liability for failure or unavailability of the Telecommunications Network.
4.5 NodeMax and any subsequent service provider that takes over the Services and/or the Customers shall not be liable, in contract, pre-contract, tort or otherwise, for any direct, indirect, consequential, special, incidental, statutory or punitive losses, damages or expenses suffered by the Customer or any third party including (but not limited to) any economic loss, loss of anticipated sales profits , revenues or savings, reputation, goodwill, business contracts or losses resulting from third party claims under or in connection with this Agreement or its termination or in relation to the suspension of the Services for any reason whatsoever.
5 Customer Responsibilities
5.1 The Customer shall at all times:
5.1.1 Comply with any reasonable directions or instructions (including requests for assistance or information) issued from time to time by NodeMax in connection with the Services or any of them;
5.1.2 Pay NodeMax's charges under this Agreement on or before the due date for payment without set off or deduction;
5.1.3 Ensure insofar as is possible that the Telephone Numbers are not used in any unlawful, improper or damaging manner;
5.1.4 Indemnify and hold harmless NodeMax against all liabilities, claims, damages, losses, costs and proceedings howsoever arising from any improper use of the Services;
5.1.5 Indemnify and hold harmless NodeMax against all liabilities, claims, damages, losses, costs and proceedings howsoever arising from a claim by a third party where the third party claims it has the right to prevent the Customer from using the Telephone Number.
5.1.6 Once a Number or Call Service has been activated, the customers should thoroughly check that the number or call service is working correctly and report any faults to NodeMax immediately.
5.1.7 Once an order for a number has been confirmed, the customers should check that the numbers is working properly and report any faults to NodeMax immediately.
5.1.8 Inform NodeMax of any changes to an email address.
5.2 Where the Customer's Order Form includes an order for a Premium Rate Number the Customer shall also:
5.2.1 Provide NodeMax with an accurate description of the Premium Rate Service it intends to provide;
5.2.2 Prior to providing the Premium Rate Service ensure that it obtains all necessary licences, authorities and approval from ICSTIS, OFCOM and any other regulatory body relevant to the Premium Rate Service and thereafter maintains such licences, authorities and approval for the duration of this Agreement;
5.2.3 Upon the request of NodeMax provide NodeMax with written evidence of such licences, authorities and approval;
5.2.4 Notify NodeMax immediately of any intention on the part of the Customer to change the nature of the Premium Rate Service and obtain NodeMax's agreement in writing to the proposed change prior to providing the new Premium Rate Service;
5.2.5 Ensure the Premium Rate Service:
5.2.5.1 Complies with all relevant legislation, regulations, guidelines and codes of practice;
5.2.5.2 Does not include any material which is defamatory, offensive, indecent, threatening or likely to bring NodeMax into disrepute by virtue of its connection with the Customer;
5.2.5.3 Does not refer to NodeMax or the Operator without their prior approval in writing.
5.2.6 The Premium Rate Service may be monitored from time to time by NodeMax in order to ensure compliance with the terms and conditions of this Agreement or by the Operator, ICSTIS or any similar authority to ensure compliance with all applicable legislation, regulations, guidelines and codes of practice.
5.2.7 If a Customer selects "Delete Number" they will be asked to confirm whether they want to delete the number - if they confirm that they want to delete the number, the number will be de-activated and become available for someone else to use. There is no Pro-Rata refund for any services or numbers.
5.2.8 A Customer can only have one Account with NodeMax and they must be logged in to the NodeMax control panel to purchase any services from NodeMax.
5.2.9 All Customers must a valid email address in order to use any of NodeMax's Services. NodeMax sends out Alerts, Invoices, Call Credit Balance Updates, Service Updates and Company News by email to all customers.
6 Premium Rate Services
6.1 The customer shall be responsible for the quality and delivery of the content of the services and that these services shall comply with the ICSTIS code of practice and this agreement.
6.2 The customer is responsible for obtaining all necessary approvals, permissions or authorisations for use of the numbers. The Customer shall neither acquire any right, title or interest in the numbers.
6.3 The customer shall provide NodeMax with such information or material relating to the services as may be requested including without limitation copies of recorded messages and any other information supplied to callers or potential callers.
6.4 The customer shall ensure that the services neither infringe any intellectual property rights nor are defamatory.
6.5 The customer shall liaise with NodeMax in relation to any complaints, enquiries or investigations by callers, the media, ICSTIS or Ofcom relating to the service.
6.6 The customer shall neither state or imply any approval of the services by NodeMax, and shall use no words, names or expressions which in any way connect NodeMax to the services.
6.7 The customer shall ensure that any third party utilising its facilities shall be bound by clauses 6.1 to 6.9
6.8 The customer shall reimburse NodeMax in full any fines or charges incurred from ICSTIS or any other third party in connection with failure to comply with the relevant rules and regulations issued by the relevant third party.
6.9 All clients taking premium rate numbers will have to sign a Master Agreement for the Provision of Premium Rate Services.
7 Charges and Payment
7.1 Connection and Initial Service Charges are payable on completion of the Customer Order Form.
7.2 Any other Charges including Call Routing Charge are payable in advance. NodeMax may invoice Monthly, Quarterly or Annually. In respect of unascertainable future charges, NodeMax may require a reasonable security deposit.
7.3 NodeMax requires that the Customer pay by Credit/Debit Card, Electronic Bank Transfer (BAC's and CHAP's), Standing Order or Cheque. In the event that the Customer is unwilling or unable to pay by NodeMax's chosen means - or - such automated means are not set up or fail for any reason before NodeMax invoices the Customer; an additional administration charge may be levied for each invoice.
7.4 Certain Services (e.g. Routing Call to a Mobile or International Destination) have additional costs which are outside the control of NodeMax. Where any such charges are increased to NodeMax it shall forthwith advise the Customer and be entitled to increase its own charges for the same Services by the same proportion.
7.5 Interest will be charged on overdue payments at 4% above Barclays Base Rate until paid.
7.6 Our published prices are exclusive of Value Added Tax.
7.7 NodeMax shall in respect of each Service be entitled to review and vary from time to time the Charges and introduce new Charges. The varied or new charges shall take effect 2 weeks after written notice has been given to the Customer detailing such variations or new Charges in accordance with Section 2.11.
7.8 Charges may also be imposed in the following circumstances brought about by a Customer request:
7.8.1 Change of Destination Number if Customer is using an IVR Application or a Premium Rate Service.
7.8.2 Change of Operator for any Telephone Number.
7.8.3 Change of Service Provider or Network Operator upon termination of this Agreement in respect of any Telephone Number.
7.8.4 Transfer of any Telephone Number to another Individual or Organisation.
7.9 The Customer shall not dispute the amount of any Operator generated Charges unless and then only to the extent that NodeMax is entitled to dispute such charges with the Operator.
7.10 NodeMax shall be entitled to impose a £25 reconnection fee in the event that the Customer requests and NodeMax agrees, to reconnect the Telephone Number following disconnection under clause 9.
7.11 NodeMax shall be entitled to impose a £25 administration fee in the event that the Customer requests and NodeMax agrees, to remove a Number from an Account.
8 Revenue
8.1 The Customer shall be entitled to receive Call Share Revenue from NodeMax based on the Minutes of Call Time generated by the use of a Premium Rate or some Non Geographic Number when applicable.
8.2 Call Share Revenue is payable on 09 Premium Rate Numbers, 0870 National Rate Numbers, 0871 Fixed Rate Numbers and 0844 Fixed Rate Numbers. Ofcom does not permit any Call Share Revenue to be paid on 070 Personal Numbers.
8.3 In order to earn Call Share Revenue, the amount of Inbound Minutes on 0870 and 0871 Numbers must exceed 1500 Daytime Minutes per Month, for 0844 Numbers the Inbound Minutes must exceed 2000 Daytime Minutes per Month, for 09 Premium Rate Numbers inbound minutes must exceed 50 minutes per month. Call Share Revenue can only be paid when a Number is routed to a UK Landline Number with a 01 or 02 prefix destination.
8.4 The minimum payment NodeMax makes is £50.00, if the Call Share Revenue due for a month is not more that £50.00, then the amount will be credited to our Customers Account, once the amount in the Customers Account exceeds £50.00 we will make a payment.
8.5 The rate at which Revenue shall be paid shall be agreed upon between NodeMax and the Customer.
8.6 Call Share Revenue is paid on a Monthly basis about 40 Days after the end of the month by Bank Transfer. NodeMax must receive an Invoice from the Customer in order to pay Call Share Revenue.
8.7 NodeMax shall be entitled to withhold Revenue due to the Customer:
8.7.1 Upon the suspension of the Service in accordance with clause 9;
8.7.2 If NodeMax suspects the Customer is in breach of any term of this Agreement or any other agreement between the parties;
8.7.3 If NodeMax suspects the Customer has increased its entitlement to Revenue by fraudulent or improper means;
8.7.4 If NodeMax has not received the corresponding payment from the Operator.
8.8 NodeMax shall be entitled to set off any Charges due to NodeMax against Revenue due to the Customer.
9 Suspension of Services
9.1 NodeMax may suspend all or part of any Services provided to a Customer for so long as reasonably required or to disconnect all or any of the Customers Telephone Number/s at any time without notice if:
9.1.1 The Customer is in material breach of this agreement or any other agreement between the parties and in particular in breach of clause 5 or 7;
9.1.2 The Customer acts in such a way or permits anything to be done which, in the reasonable opinion of NodeMax, relates to the Services and may impair or jeopardise the operation of the Services or any part of the Telecommunications Network;
9.1.3 Required to do so directly or indirectly by Law, the Operator, OFCOM or ICSTIS;
9.1.4 Required for modification or maintenance or in cases of emergency;
9.1.5 NodeMax has reason to believe the Services are being used for unlawful, fraudulent or improper purposes.
9.1.6 A Customer has supplied NodeMax with an invalid email address or an email address that does not work;
9.1.7 An email sent to the customer is undeliverable or returned/bounced back to NodeMax;
9.1.8 When a Customers call charge balance reaches £0 (Zero pounds) or in to a negative balance.
9.1.9 Whenever NodeMax, in its reasonable opinion, deems that it is required to do so.9.2 The Customer shall remain liable for all Charges during any period of suspension attributable to the actions or omissions of the Customer.
10 Termination of Agreement
10.1 NodeMax may terminate this Agreement immediately by notice in writing to the Customer if:-
10.1.1 The Customer is in breach of any of the terms of this Agreement or any other agreement between the parties and does not remedy the breach within 7 days of the date of written notice from NodeMax specifying the breach and requiring it to be remedied;
10.1.2 Any licence, permission, agreement or authorisation granted to the Operator or to NodeMax necessary for the provision of the Services is suspended, revoked or terminated; or NodeMax is unable to recover from the Operator Revenue payments due to the Customer.
10.2 Either NodeMax or the Customer may terminate this Agreement immediately by notice in writing if it has reasonable reason to believe that the other has or will have debts to it which will not be paid when due.
10.3 In case the Customer terminate this Agreement the Customer shall be liable to compensate NodeMax for its likely loss of income under the Agreement (from whatever source) from the date of termination to the date on which the Customer could have first terminated the agreement under clause 2.6.
10.4 NodeMax (or any subsequent service provider that takes over the Services and/or the Customers) has the right to terminate this Agreement or suspend the Services at any time by giving 30 days' prior notice to the Customer.
10.5 Any termination of this Agreement shall be without prejudice to the rights of either party accrued to the date of termination.
11 Data Protection Act
11.1 Information that the Customer provides to NodeMax about private individuals relevant to NodeMax's dealings with the Customer will be stored within NodeMax's computer system.
11.2 For the purpose of the Data Protection Act 1998 ("the Act") NodeMax needs to specify the purposes for which it will use that information. It will of course only use it for legitimate purposes, including:-
11.2.1 Communicating with the individuals concerned as necessary in connection with the Customer's dealings with NodeMax;
11.2.2 Communicating with the Customer in connection with NodeMax's services generally;
11.2.3 Providing it to third parties as required by the Customer or the law or as necessary in connection with the Customer's dealings with NodeMax (including for inclusion in publicly available directories). Those third parties may be outside the European Economic Area;
11.2.4 Providing it to licensed credit-referencing agencies for credit checks to be undertaken.
11.3 By giving NodeMax that information the Customer consents to NodeMax holding using and disclosing it for those purposes.
11.4 NodeMax is permitted under the Act to hold and use personal data for the purposes specified above. It will not process such data provided by the Customer otherwise than for those purposes or as otherwise required by the Customer.
11.5 NodeMax confirms that it will comply with the Seventh Data Protection Principle under the Act (data security) in relation to all personal data supplied by the Customer.
12 Third Parties
12.1 The Customer may allow a third party to use a Premium Rate Number as part of a managed bureau service provided by the Customer in connection with the provision of Premium Rate Services, in which case the Customer shall procure the third party's compliance with the terms of this Agreement and all relevant legislation, regulations, guidelines and codes of practice.
13 General
13.1 NodeMax shall send all bills and serve any Notices on the Customer pursuant to this Agreement by Email to the Email address supplied by the Customer or any other address provided by the Customer for this purposeor in accordance with Section 2.11, on the NodeMax Website.
13.2 The Customer shall serve any notice pursuant to this Agreement by post on NodeMax at its Registered Office address.
13.3 All documents shall be deemed served 48 hours after sending.
13.4 No failure by NodeMax to exercise any of its rights under these terms and conditions or concession granted and shall prevent subsequent enforcement of those rights or constitute an agreement to provide the same concession again.
13.5 Subject to clause 13.6, the Customer acknowledges that it has not been induced to enter into this Agreement by any representations made before or on entering into this Agreement (whether made negligently or innocently or whether oral or written) and that it has only relied upon matters set out in this Agreement in deciding to enter into this Agreement.
13.6 The Customer acknowledges that the only remedy it has against NodeMax for any misrepresentation or untrue statement shall be a claim for damages for breach of this Agreement. However, if NodeMax has made any fraudulent representations upon which the Customer has relied, the Customer may pursue NodeMax, and the Customer shall be entitled to all available remedies under English law.
13.7 NodeMax may charge a maximum of 12 months worth of revenue or call charges (actual or projected) to Port a number to another Service Provider unless there is a fault with our service. If there is a fault with our service then Porting to another Service Provider is free of charge.
13.8 No variation of this Agreement or waiver hereunder shall be effective unless agreed in writing by NodeMax.
13.9 If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these terms and conditions and the remainder of the provisions in questions shall not be affected as a result.
13.10 The Customer shall not assign or try to assign any or all of the rights and responsibilities under the Agreement but NodeMax may transfer its right and obligations hereunder to a new service provider in which circumstances the Customer shall enter into a new agreement with the new service provider.
13.11 Where two or more persons constitute the Customer their liability is joint and several.
13.12 NodeMax may require a variation to the terms and conditions of the Agreement if so required by legislation, the Operator, OFCOM, PhonePayPlus or any similar authority.
13.13 Nothing within this Agreement is intended to create third party rights pursuant to the Contracts (Rights of Third Parties) Act 1999.
13.14 Any dispute as to the sum to which NodeMax is entitled pursuant to clause 10.3 shall be referred to a single expert to be appointed by agreement between the parties or in default by the application of either party to the President for the time being of the Institute of Chartered Accountants. The expert's fees will be shared equally by the parties.
13.15 If a Customer is in breach of this Agreement then NodeMax may contact any End Users associated with the Customers account and provide the End User with services.
13.16 This Agreement is governed by English Law and English Courts shall have exclusive jurisdiction as regards any dispute.
13.17 All numbers are supplied to end users. If you are a Telecoms company you need to make that known to NodeMax Ltd before ordering.
13.18 If you need to order more than 10 numbers you need to speak to NodeMax Ltd's Sales Department before ordering.
13.19 You are not allowed to port away any number which has not been purchased or numbers at a £0 cost unless you pay the retail price before transfer. The retail price is based on the the geographic range costs. All numbers at £0 cost belong to NodeMax Ltd.
