The complete terms and conditions are shown below or you can download a copy here (pdf file).
1. Definitions and Interpretation
THE MESSAGE PAD LIMITED – BUREAU TERMS AND CONDITIONS
The Message Pad LIMITED company number 02892893, whose registered office is THE
INNOVATION CENTRE, GALLOWS HILL, WARWICK, WARWICKSHIRE CV34 6UW (“MPL”)
1. Definitions and Interpretations
“Agreement” means this agreement as comprised in this document entitled ‘The
Message Pad Limited – Bureau Terms and Conditions’, the Cover Page and any
document annexed by both parties to this Agreement or such further terms and
conditions as may be included in or annexed to the Cover Page;
“Associated Company” means a company which is a holding company of a party to
this Agreement, or a subsidiary of the holding company or a company which is a
franchisee of MPL;
“Bureau Terms and Conditions” means these terms and conditions as set out in
clauses 1 to 13;
“Callers” mean those persons seeking to communicate with the Client through use
of the Services provided by MPL;
“Call Handler” means those MPL employees or agents engaged in the provision of
Services;
“Charges” means the consideration payable for the provision of Services under
this Agreement as identified and described in the Cover Page;
"Client" means the company or sole trader or partnership named as the Client on
the Cover Page of this Agreement;
“Confidential Information” means all Data and other information (in any form and
whether reduced into writing, given orally or stored in any media or recoverable
from any media) relating to either party to this Agreement, any subsidiaries,
subcontractors and agents and any Associated Company, its subsidiaries,
subcontractors and agents, that is received in the course of any negotiations
prior to the making of this Agreement or gained in the entering into or
performance of this Agreement, and which is either expressly designated as being
confidential or should reasonably be considered confidential by the party to
whom the information belongs, including the terms of this Agreement;
“Cover Page” means the MPL pro forma document (of one or more pages) headed
“Client Order”;
“Data” means that Intellectual Property including Personal Data howsoever
recorded or stored that is created by MPL in the discharge of its obligations
under this Agreement;
“Dedicated Terms and Conditions” means the further terms and conditions which
shall be applicable as well as these Bureau Terms and Conditions when this
Agreement is or becomes and agreement for the provision of Dedicated Services;
“Employee Claim” means a claim by an employee for wrongful dismissal, unfair
dismissal, breach of contract, unlawful discrimination, redundancy, protective
awards, unlawful deductions from wages and/or any claim capable of being brought
in an Employment Tribunal or Court of England & Wales;
“Facilities” means all the personnel, equipment, software, premises and
infrastructure necessary to provide the Services;
“Force Majeure” means circumstances beyond the reasonable control of a party
including, without limitation, loss of or interruption to the national
communications infrastructure or significant part thereof (such as for example
the telephone network), loss of use of any premises from which the Services are
provided because of evacuation on the advice of the emergency services, acts of
God, acts of any governmental or supranational authority, war or national
emergency, riots, civil commotion, fire, explosion, flood, (other than fire,
explosion or flood arising as a result of a breach of this agreement by the
Provider) epidemic and loss of electricity supply;
“Intellectual Property” means property in which intellectual property rights of
whatever nature (including but not limited to rights in computer software,
patents, trade marks, service marks, design rights, database rights, know-how
rights, goodwill, reputation, get-up, logos, devices, plans, models, data,
diagrams, specifications, source and object code materials, processes, design
rights, trade or business name rights, rights in confidential information,
present contingent and future copyright, rights to sue for passing-off, plus
applications or rights to apply for any of the foregoing) subsist;
“MPL Replacement” means an undertaking (not being the Client) which is to
provide or perform (or continue to provide or perform) services which are the
same as or similar to or are in substitution of or replacement for the Services
(or any part thereof) at any time after the Termination Date;
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Regulations” means the Transfer of Undertakings (Protection of Employment)
Regulations 1981 and the Transfer of Undertakings (Protection of Employment)
Regulations 2006 as they may be amended from time to time;
“Services” means the Services to be provided by MPL under this Agreement
including Set Up Services;
“Services Schedule”means a Schedule to this Agreement particularising details of
the Services to be provided;
“Set Up Services” means those Services which consist of the process of analysing
the Client’s stated requirements, identifying the nature of Services that MPL
can provide in order to fulfil (as best as possible) those requirements, and the
process of preparing the Facilities in order to be able to provide those
Services;
“Start Date” means the date from which the Services are to be provided or the
date upon which the Set Up process finishes, whichever is the later;
“Term” means the period over which this Agreement continues;
“Termination Date”means the date upon which this Agreement ends.
1.2 In this Agreement unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice
versa;
(c) words importing persons include firms, companies and corporations and vice
versa;
(d) references to numbered clauses, schedules and annexes are references to the
relevant clause in or schedule or annex to this Agreement.
2. Provision of Bureau Services
2.1 On the date of this Agreement the Client appoints MPL to provide the Set Up
Services and, on completion of the Set Up, to provide Services for the Term in
accordance with these Bureau Terms and Conditions of this Agreement. MPL may
provide the Services or some of them by an Associated Company.
2.2 The Cover Page shall be deemed an offer by the Client to contract with MPL
subject to the Bureau Terms and Conditions. MPL may accept that offer and any
such acceptance shall be effective only if subject to these Bureau Terms and
Conditions.
2.3 Irrespective of the date of this Agreement, it shall continue for a minimum
period of twelve months from the Start Date and shall automatically continue for
recurring periods of 1 year unless terminated in accordance with the provisions
of clause 8.
2.4 MPL shall provide the Services with reasonable skill and care and shall use
personnel who possess a degree of skill and experience which is appropriate to
the tasks to which they are allotted and who shall perform those tasks in a
workmanlike and professional manner.
2.5 A Services Schedule may be agreed or have been agreed between the parties.
If one is required and not agreed before the making of this Agreement, the
parties shall endeavour to finalise and agree such a Schedule as soon as is
reasonable in the circumstances. Should there be no Services Schedule or until
one is agreed, MPL shall provide those Services as it may deem to be required by
the Client having regard to the knowledge it has at the time of making this
Agreement.
2.6 MPL hereby warrants and represents to the Client that:
(a) it has and will during the continuance of this Agreement continue to have
the full capacity and authority and all necessary licences, permits and consents
(other than in respect of any Client software and Intellectual Property provided
by the Client) to enter into and to provide the Services under this Agreement;
(b) this Agreement is executed by a duly authorised representative of MPL;
(c) the provision of the Services by MPL shall not infringe any Intellectual
Property rights of any third party provided that this sub-clause shall not apply
where the infringement claim arises from the proper use by MPL of the Client
Software and / or the Intellectual Property provided by the Client.
2.7 MPL shall have the right at any time without notifying the Client to make
changes to the Services which are necessary to comply with any applicable safety
or other statutory requirement provided that such variation does not materially
affect the quality or performance of the Services which may be reasonably
anticipated by the Client.
3. MPL as an agent of the Client
3.1 Where in the course of providing the Services under this Agreement MPL is
required to act for or on behalf of the Client in any dealings with a Caller,
both parties recognise that in such a case MPL is acting as an agent for the
Client.
3.2 The Client hereby authorises MPL to act as its agent, and indemnifies MPL
against any loss or damage incurred by MPL by reason of it being an undisclosed
agent of the Client when properly carrying out the provision of the Services in
accordance with the Client’s instructions. The authority given to MPL by the
Client shall be limited to that authority necessary to carry out the Services.
3.3 The Client acknowledges and requests that, to the extent lawful,
communications which relate to the provision of Services under this Agreement
are to be recorded within the MPL Facilities for the following purposes:
(a) monitoring or keeping a record of communications in order to establish the
existence of facts; or
(b) ascertain or demonstrate the standards which are achieved or ought to be
achieved by Call Handlers in the course of their duties; or
(c) for the purpose of investigating or detecting the unauthorised use of the
Facilities or any other telecommunication system.
3.4 To the extent that the consent of any party is required in the making of any
record, or the obtaining of or processing of any Data for the Client by MPL
under this Agreement, the Client shall have the obligation to obtain such
consent.
4. Charges and Payment
4.1 The Charges as set out in the Cover Page shall become due and payable in
accordance with the terms set out therein.
4.2 On the Cover Page, under the sub-heading ‘Summary of Charges’:
(a) “By Invoice” means that payment shall be due for payment no later than 30
days from the date of the Invoice;
(b) “Monthly in advance” means that payment shall be made no later than the last
day of the calendar month immediately preceding the month in which Services are
to be delivered;
(c) “Monthly in arrears” means that any invoices rendered by MPL for Charges
which are stated to be payable monthly in arrears shall be paid by the Client
within 30 days of the date of such invoice.
4.3 In consideration of greater use its resources as may be required over the
period up to and including Christmas and New Year, MPL may increase the Monthly
Management Charge by up to 50% for that period covering the month of December.
4.4 Where there is any change or addition to the nature or volume of the
Services at any time during the Term (“Additional Services”), Charges for the
Set Up of such Additional Services will be payable by the date of the next
following monthly payment. Charges for continuing Additional Services will be
payable on the same terms as for the Services. MPL reserves the right to
increase that element of the Charges if the Client, being aware of the possible
increase, makes a request for a variation in the manner in which MPL administers
the Client’s Services where such request would require the provision by MPL of
resources additional to those already in use to supply the Services to the
Client.
4.5 If the Client fails to make any payment due to MPL in full within 7 days of
the due date then, without prejudice to any other right or remedy that may be
available to MPL, MPL shall be entitled:
(a) following the giving of notice by email, fax or post of the intention to do
so, to suspend performance of some or all of the Services until all sums due to
MPL have been paid in full;
(b) to charge the Client interest (both before and after any judgment) on any
unpaid amount at the rate of 2% above the base rate per month accruing on a
daily basis of Lloyds TSB Bank Plc from time to time from the due date until the
actual date of receipt of such amount by MPL; and / or
(c) charge the Client for any costs incurred in obtaining (or attempting to
obtain) payment of any unpaid amounts including, without limitation, reasonable
legal fees and back Charges.
4.6 MPL shall be entitled to charge the Client interest to accrue daily at the
rate of 2% per annum above Lloyds TSB Bank plc base rate from time to time on
any amount that remains unpaid for more than 30 days.
4.7 All Charges to be paid by the Client under this Agreement are stated
exclusive of VAT which shall additionally be paid by the Client where relevant
at the rate applicable from time to time in the manner prescribed by law.
4.8 The Client shall pay all Charges when due without any deduction or set-off.
4.9 All Charges are exclusive of MPL’s reasonable expenses incurred in
connection with the provision of the Services which shall be payable by the
Client at cost in addition to the Charges.
4.10 MPL reserves the right, by giving notice to the Client at any time, to levy
additional Charges for one or more of the Services commensurate with any
increase in the cost to MPL of supplying Services to the Client which is due to
an act or omission of the Client including but not limited to any delay caused
by any instructions of the Client or failure by the Client to give MPL adequate
information or instructions or if the costs to MPL of providing the Services
increase by more than 5% within the preceding 12 month period.
4.10 Save as permitted in this clause 4, MPL will not increase the rate of
Charges for 12 months from the Start Date after which those Charges may be
reviewed.
5. Client’s obligations
5.1 The Client shall provide MPL with all assistance, materials and full and
accurate information for the purposes of enabling MPL to provide the Services.
5.2 The Client undertakes and agrees that in order for MPL to carry out the Set
Up or to provide the Services it will make such resources and information
available in a timely manner to MPL as MPL shall reasonably request.
5.3 The Client hereby warrants and represents to MPL that:
(a) it has and will during the Term continue to have the full capacity and
authority and all necessary licences, permits and consents to enter into and
perform its obligations pursuant to this Agreement;
(b) the processing of any Data by MPL shall not infringe any rights of any third
party;
(c) it is the owner or properly authorised or licensed party of all Intellectual
Property which it makes available to MPL under this Agreement and has all
necessary permissions for the creation of Personal Data by MPL in the discharge
of its obligations;
(d) this Agreement is executed by a duly authorised representative of the
Client;
(e) all Intellectual Property provided by it prior to and for the Term of this
Agreement shall not be obscene, defamatory or likely to result in any claim
being made against MPL by any third party;
(f) it will not act in any way which is prejudicial to MPL or its business or
which may reflect adversely on the integrity, goodwill or reputation of MPL or
any Associated Company.
5.4 The Client warrants that by the process of negotiating the making of this
Agreement or the execution of it, no employee of the Client or no employee of
any sub-contractor to the Client has acquired any right to make an Employee
Claim by virtue of the operation of the Regulations.
5.5 The Client agrees not to use the Services for any unlawful immoral or
improper purpose and acknowledges that such use constitutes grounds for
immediate termination of the Services by MPL under clause 8.1.
6. Intellectual Property rights
6.1 All Data shall vest in the Client. The Client authorises MPL for the
continuance of the Term to create Data in the course of carrying out its
obligations and to process it under the terms of this Agreement. The Client
further authorises MPL that following the Termination Date MPL may retain and
process all such Data, subject to the obligations arising under clause 7 and any
requirements of the Data Protection Act 1998.
6.2 Where, in connection with the provision of the Services, the Client uses any
Intellectual Property which is owned by MPL, MPL shall grant to the Client, or
shall procure that the Client is granted (without charge to the Client and for
the benefit of the Client) an non-exclusive, royalty-free licence to use such
Intellectual Property for the Term.
6.3 Where, in connection with the provision of the Services, MPL uses any
Intellectual Property which is owned by the Client, the Client shall grant to
MPL an indefinite non-exclusive, royalty-free licence to use such Intellectual
Property in the proper discharge of its obligations under this Agreement.
6.4 Unless stated expressly in writing in this Agreement, neither party will
acquire any ownership of or rights in the other's Intellectual Property by the
operation of Agreement.
6.5 The Client shall indemnify MPL against any claim or action brought against
MPL alleging that the use of Client’s Intellectual Property infringes the
Intellectual Property rights of a third party.
7. Duty of Confidentiality
7.1 The parties to this Agreement undertake, except as provided below, to treat
as confidential and keep secret all Confidential Information of the other with
the same degree of care as each employs with regard to its own Confidential
Information and in any event in accordance with best current commercial security
practices provided that this clause shall not extend to any information which
was rightfully in the possession of either party prior to the commencement of
the negotiations leading to this Agreement or which is already public knowledge
or becomes so at a future date (otherwise than as a result of a breach of this
clause).
7.2 Neither party shall without the prior written consent of the other party
divulge any part of the other party’s Confidential Information to any person
except:
(a) to their own employees, consultants or sub-contractors and then only to
those employees, consultants or sub-contractors who need to know the
Confidential Information for the purposes of this Agreement; and
(b) to either party’s auditors, HM Revenue & Customs, a court of competent
jurisdiction, governmental body or applicable regulatory authority and any other
persons or bodies having a right duty or obligation to know the business of the
other party and then only in pursuance of such right duty or obligation.
7.3 Both parties undertake to ensure that persons and bodies referred to in
clause 7.2 are made aware prior to the disclosure of any Confidential
Information that the same is imparted under a duty of confidentiality.
7.4 Each party to this Agreement shall promptly notify the other party if it
becomes aware of any breach of the duty of confidentiality and shall give the
other party all reasonable assistance in connection with any proceedings which
the other party may institute against such person for such a breach of the duty.
7.5 The duty of confidentiality shall remain in full force and effect following
the Termination Date.
8. Termination
8.1 This Agreement may be terminated for breach:
(a) immediately on service of a notice by either party if the other party is in
breach of any material obligation under this Agreement and, if the breach is
capable of remedy, that party has failed to remedy such breach within 30 days of
receipt of notice so to do (or within 7 days of receipt of such notice in
respect of breach of any payment obligations by the Client);
(b) immediately on service of a notice by either party on the other if a
resolution is passed or an order is made for the winding up of the other
(otherwise than for the purpose of solvent amalgamation or reconstruction) or
the other becomes subject to an administration order or a receiver or
administrative receiver is appointed over or an encumbrancer takes possession of
any of the other's property;
(c) immediately on service of a notice by either party if the other party ceases
or threatens to cease to carry on business in the United Kingdom;
(d) immediately on service of a notice by MPL if the Client uses or seeks to use
or seeks to facilitate the use by any other party of the Services for any
purpose which is unlawful, or which is or may be considered to be indecent, lewd
or offensive.
8.2 The Client may terminate this Agreement at any time on 60 days prior written
notice expiring at any time after the first anniversary of the Start Date.
8.3 Any waiver by MPL of a breach of any provisions of this Agreement shall not
be considered as a waiver of any subsequent breach of the same or any other
provision. The right to terminate this Agreement shall not prejudice any other
right or remedy of MPL in respect of any other breach of this Agreement.
9. Consequences of termination
9.1 If this Agreement is terminated in accordance with the terms of clause 8, or
should the parties agree during the Term to reduce the level of Services being
provided, MPL shall, subject to payment of its reasonable fees, co-operate fully
with the Client to manage any necessary migration of Data or other information
to the Client or, at the Client's request, an MPL Replacement.
9.2 Within 30 days of the Termination Date MPL shall return to the Client all of
the Client’s Confidential Information and certify in writing if the Client so
requires that the same has been restored to the Client. However, the parties
acknowledge that MPL may retain recordings or electronic copies of Confidential
Information in accordance with its retention of business records and Data
policy.
9.3 Any termination of this Agreement shall not affect any accrued rights or
liabilities of either party nor shall it affect the coming into force or the
continuance in force of any provision of this Agreement which is expressly or by
implication intended to come into or continue in force on or after termination.
10. Data Protection
10.1 MPL undertakes to the Client that it will comply with obligations
equivalent to the obligations of a 'data controller' under the provisions of the
seventh data protection principle as set out in Schedule 1 of the Data
Protection Act 1998.
10.2 In addition, MPL:
(a) warrants that it has appropriate technical and organisational measures in
place against unauthorised or unlawful processing of Personal Data and against
accidental loss or destruction of, or damage to, Personal Data held or processed
by it and that it has taken reasonable steps to ensure the reliability of any of
its staff who have access to Personal Data processed in connected with this
Agreement;
(b) undertakes that it will act only on the instructions of the Client in
relation to the processing of any Personal Data in connection with this
Agreement.
10.3 MPL will comply with the Client’s Data security policies as notified to it
from time to time.
10.4 The obligations set out in this clause shall remain in force
notwithstanding termination of this Agreement.
11. The Regulations
11.1 Subject to the provisions of clause 11.2, the Client shall indemnify MPL
and keep MPL fully and effectively indemnified against all loss or damage
resulting from any proceedings, awards, penalties, interest, damages, orders,
costs (including legal costs) or any expenses arising or accruing to MPL as a
result of any Employee Claim.
11.2 The indemnity at clause 11.1 shall only apply:
(a) in respect of any person employed by the Client prior to the making of this
Agreement; and
(b) whose Employee Claim includes a claim that there has been a breach of the
Regulations.
12. MPL’s exclusion of liability, limitation of liability and indemnity
12.1 MPL shall not be liable to the Client or be deemed to be in breach of its
warranties or obligations under any provision of this Agreement:
(a) for any delay in performing or for any failure to perform its obligations to
the extent that such delay or failure was due to any omission or failure of the
Client to comply with reasonable requests by MPL for instructions information or
action required by it to perform its obligations within a reasonable time limit;
or
(b) for the consequences of any acts or omissions of the Client, its employees
or agents or any third party engaged by or on behalf of the Client (other than
third party sub-contractors or suppliers selected by MPL); or
(c) if the Client is in default of any of its payment obligations to MPL.
12.2 Subject to clause 12.3, MPL shall be liable for the personal injury of any
person or the death of any person directly caused by the negligence of MPL’s
employees servants or agents in connection with the provision of the Services.
12.3 All liability that is not expressly assumed in this Agreement is hereby
excluded. Particularly, MPL will not be liable:
(a) for consequential or indirect losses resulting from the misinterpretation or
misrecording of any information, delay in passing any information to any person
or through any communications system or the failure to pass any information to
any person or through any communications system; or
(b) for loss or damages howsoever arising including consequential or indirect
losses resulting from the loss of or corruption of Data or from use of Data by
MPL when properly discharging its obligations under this Agreement; or
(c) for any consequential loss including that resulting in lost profits, loss of
opportunity or anticipated savings, or resulting from any breach of contract or
any duty at law as a consequence of any act or omission of MPL and whether such
loss was reasonably foreseeable or actually foreseen. However nothing in this
Agreement shall have effect to exclude or limit liability for fraudulent
misrepresentation.
12.4 MPL’s maximum liability to the Client (other than in cases of personal
injury to or death of any person) where not excluded under this Agreement shall
not exceed in any circumstances an amount equivalent to the total amount of
Charges actually paid by the Client to MPL during the six complete calendar
months immediately preceding the accrual of such liability (or the first of such
liabilities).
12.5 The parties acknowledge and agree that the limitations contained in this
clause 12 are reasonable in the light of all the circumstances and that nothing
in this Agreement excludes or limits liability under or in connection with this
Agreement for fraud, death of or personal injury to any person or any other
liability to the extent such liability may not be excluded or limited as a
matter of law.
12.6 The Client accepts and acknowledges that calls and information may be
routed over national and international public telecommunication systems or other
communications networks which are not under the control of MPL. MPL shall have
no liability to the Client where there is failure to provide the Services over
any period or periods during the Term in a satisfactory manner or at all:
(a) which arises because of any failure or breakdown of national and
international public telecommunication systems or other communications networks
used in delivering the Services which are not under the control of MPL; or
(b) if the failure was due to any event of Force Majeure.
12.7 The Client shall be free to obtain substitute services from an alternative
supplier during the continuance of the event of Force Majeure and shall be under
no obligation to pay MPL for Services which have not been supplied by MPL
because of the event of Force Majeure.
12.8 MPL will indemnify the Client for direct damage to tangible property (which
for avoidance of doubt shall not include Data) caused by the negligence of its
employees servants or agents in connection with the performance of their duties
under this Agreement. MPL’s total liability under this clause shall be limited
to £2,000,000 for any one event or series of connected events.
13. General
13.1 Any notice required or permitted to be given by either party to the other
under this Agreement shall be in writing sent by post or by facsimile addressed
to that other party at its principal or usual place of business.
13.2 This Agreement shall be governed by the laws of England & Wales and the
parties submit to the exclusive jurisdiction of the Courts of England.
13.3 This Agreement constitutes the entire agreement and understanding of the
parties and supersedes any previous agreement between the parties relating to
the subject matter of this Agreement and no additions, amendment to or
modifications of this Agreement shall be effective unless it is in writing and
duly signed on behalf of the parties.
13.4 If any provision of this Agreement is prohibited by law or judged by a
court to be unlawful, void or unenforceable, the provision shall, to the extent
required, be severed from this Agreement and rendered ineffective as far as
possible without modifying the remaining provisions of this Agreement, and shall
not in any way affect any other circumstances of or the validity or enforcement
of this Agreement.
13.5 Any provision intended to or capable of surviving termination of this
Agreement shall continue to have effect notwithstanding the expiry or other
termination of this Agreement.
13.6 Either party may assign this Agreement to an acquirer of all or of
substantially all of such party’s equity securities, assets or business relating
to the subject matter of this Agreement or to any entity controlled by, that
controls, or is under common control with a party to this Agreement. Any
attempted assignment in violation of this clause will be void and without
effect.
13.7 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement but this does not affect any right or remedy of a third party which
exists or is available apart from such Act.
13.8 No delay, neglect or forbearance on the part of either party in enforcing
against the other party any term or condition of this Agreement shall either be
or be deemed to be a waiver or in any way prejudice any right of that party
under this Agreement. No right, power or remedy in this Agreement conferred upon
or reserved for either party is exclusive of any other right, power or remedy
available to that party.
13.9 Save as expressly provided, this Agreement shall not constitute or imply
any relationship of agency; neither shall it imply the existence of or create
any relationship of partnership, joint venture, fiduciary relationship or other
relationship between the parties other than the contractual relationship
expressly provided for in this Agreement.
13.10 This Agreement constitutes the entire agreement and understanding of the
parties and supersedes any previous agreement between the parties relating to
the subject matter of this Agreement and no additions, amendment to or
modifications of this Agreement shall be effective unless it is in writing and
duly signed on behalf of the parties.
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