“Agreement” means the Order Form and the Terms and Conditions.
“ORBTALK” means ORBTALK Limited registered number 05382664
“Charge” means the amounts to be paid by the Customer for the Solution as detailed in the Order Form.
“Customer” means the company, partnership, sole trader, person, body corporate or association named in the Order Form.
“Customer Support Line” means the ORBTALK customer support line.
“Equipment” means the Equipment supplied by ORBTALK to the Customer and required for the provision of the Solution.
“Commencement Date” means the date on which the Order Form is signed by the Customer.
“Minimum Term” means the period described as the Minimum Term in the Order Form.
“Solution” means the service detailed on the order form for example: Hosted Telephony Solution described in the Order Form or SIP Trunk(s) or Call Recording service.
“Site(s)”means the Customer’s place(s) of business.
“Support Service” means the support service chosen by the Customer in the Order Form and described below.
“System” means the Equipment configured and installed at Customer’s Site(s) and any equipment located away from the Site(s) necessary for providing the Solution.
2.1. The Customer shall prepare the Site(s) in accordance with ORBTALK instructions so that the Equipment can be installed.
2.2. It shall be the Customer’s responsibility to ensure that the physical infrastructure (such as electricity supply and earth connection) and the operating environment at the Site(s) is suitable for installing and operating the Equipment to be used in delivering the Solution.
2.3. The Customer shall provide such assistance as is necessary to enable ORBTALK to fulfil its obligations under the Agreement including providing access to the Site(s) to perform any installation and maintenance work covered by the Solution.
2.4. Any installation date given is an estimate only and ORBTALK shall not be liable for any failure to meet such installation date.
2.5. ORBTALK shall attempt to comply with the Customer’s reasonable requests regarding any installation but ORBTALK decision regarding installing the Equipment shall be final.
2.6. ORBTALK shall have no liability for any loss that the Customer or any third party may suffer as a result of installation and/or operation of the Equipment.
3. PROVISION OF THE SOLUTION
3.1. ORBTALK shall provide the Solution at the Site(s) from the date on which the Equipment is installed and the System is activated.
3.2. ORBTALK will make all reasonable efforts to provide the Solution in a reliable manner and in accordance with good industry practice.
3.3. The Customer shall notify ORBTALK as soon as it becomes aware of a fault in the System and ORBTALK will use all reasonable endeavours to provide the Customer’s Support Service as per the terms of the Agreement.
3.4. ORBTALK shall be entitled to interrupt its provision of the Solution:
3.4a. To perform required maintenance on or upgrades to the System.
3.4b. In the event of problems with the broadband network either at the Site(s) or in the public Internet Protocol environment.
3.4c. To comply with a request or order from a governmental or administrative authority or emergency service.
3.4d. If ORBTALK has a reasonable belief that an interruption is necessary to prevent fraud or any other illegal activity taking place.
3.4e. If the Customer fails to pay any outstanding Charge within 14 days of the due date or commits any other breach of the Agreement.
3.5. ORBTALK will give the Customer as much notice as is appropriate of any such interruption and shall resume provision of the Solution in as timely a manner as is appropriate in the circumstances.
4. CALL RECORDING FACILITY (non-standard feature)
Call Recording is a chargeable service provided by Orbtalk Limited and usually packaged with another product such as Hosted PBX. It is also the responsibility of the customer to ensure that they notify the other party of inbound or outbound calls, that the calls are being recorded. Call Recordings are kept for 6 weeks on the Customers system and are the responsibility of the Customer to download and archive securely and appropriately. The enabling and disabling of call recordings is the responsibility of the customer and can be managed via the self-service online portal. We provide this facility with best endeavours and whilst we will do all that we reasonably can to ensure that calls or users marked for recordings have these held on the system for the period indicated, the facility is provided on the basis that Orbtalk Ltd can in no way accept liability for any loss of recordings thought to have been made.
Any end user looking to implement call recording is strongly encouraged to get independent legal advice before using this facility to ensure that it meets their requirements and that all appropriate laws governing their jurisdiction are being adhered to if used.
UK Call Recording Legal Compliance
The following FAQ is intended to summarise the key points in the legal and regulatory environment in regard to call recording in the UK. It is not possible to provide comprehensive detail of all legislation here.
Any end user business looking to implement call recording is strongly encouraged to get independent legal advice. Orbtalk Ltd can in no way accept liability for acting purely on the points below.
- For what reasons can I record my customer’s calls?
The Lawful Business Practice [LBP] Regulations specify conditions upon which calls may be recorded. These are to:
- Provide evidence of a business transaction.
- Ensure that a business complies with regulatory procedures.
- See that quality standards or targets are being met in the interests of national security.
- Prevent or detect crime to investigate the unauthorised use of a telecom system.
- Secure the effective operation of the telecom system.
- The LBR regulations can be found on the DTI website http://www.dti.gov.ph/dti/index.php
- Do I need consent from my callers to record calls?
- No, provided the recording is to meet one of the above conditions and you are not intending to make the recording available to a third party. If you are recording for any other purpose, such as marketing or market research, you will need consent from the third party. If you are intending to make the recordings available to a third party, then you must make every reasonable effort to inform all parties to a telephone conversation that it may or will be recorded.
- How do I advise callers that they may be recorded?
- The particular means by which you choose to do this are not specified. Acceptable options, depending on circumstances, might include warning tones, pre-recorded messages, spoken warnings by the operator or written warnings included in publicity material, telephone directories, contracts, terms of business, etc. It may not always be possible to warn first-time callers with whom you have had no previous contact but what is important is that you have a systematic procedure in place which provides the necessary information wherever this is a realistic possibility." In these cases call recording is authorized on the basis that there is reasonable grounds to believe the caller has consented.
- Do I need to notify my employees that calls are recorded?
- Yes. Businesses can monitor, but not record, phone calls to see whether they are relevant to the business (ie open an employee's voicemail or mailbox systems while they are away to see ifthere are any business communications stored there). Companies and organisations that routinely record telephone calls must ensure that their employees are able to make personal calls that are not also recorded under the same system. Staff must also be made aware that personal conversations could be recorded on their telephone and must have access to a separate telephone on the premises where they can make and receive personal calls that are not recorded.
- What is the relevant legislation?
- (1) Regulation of Investigatory Powers Act 2000 ("RIPA") An interception is only lawfully carried out if one of the following applies
- (i) The person intercepting the call has reasonable grounds for believing that it has the consent of both the caller and the intended recipient of the call to intercept; or
- (ii) The interception is carried out by a business in compliance with the Lawful Business Practice Regulations (see below.)
- (2) The Telecommunications (Lawful Business Practice) (Interception of Communications)
- Regulations 2000 (the "Regulations")
- Interception is authorised if the business which is intercepting the call has made all reasonable effort to inform potential users that their communications may be intercepted, and the interception is then carried out:
- (i) To establish the existence of facts (e.g. to evidence a business transaction);
- (ii) To assess or demonstrate that standards "which ought to be achieved" are achieved (e.g. quality control and training standards);
- (iii) To prevent or detect a crime, or for purposes of national security;
- (iv) To assess compliance with regulatory practices or procedures applicable to the business;
- (v) To investigate or detect unauthorised use of the communications system; or
- (vi) To determine whether communications are relevant to the system controller’s business.
(3)The Data Protection Act 1998 ("DPA")
Recording (and use of recordings) where you can determine the identity of either party to the call, either directly from the recording or from other information, would require you to first:
- (i) Have informed that party how the recording would be used;
- (ii) Obtain consent for the recording to take place (This may be implied from the fact that the customer has been notified and not objected, but you should obtain explicit consent if the call reveals any information classified as sensitive by the DPA, ie details of race/ethnic background, political opinion, religion, trade union membership, physical/mental health, sexual life, offences committed or legal proceeding bought.)
- (iii) The obligations in relation to processing of that data also apply, so that the data must be kept for longer than necessary, under secure conditions and must be accessible to the customer at their request.
- (4)The Employment Practices, Data Protection Code The code states that employees should be informed about any monitoring of their calls and that their consent should be obtained (as required under the DPA.)
- (5)Human Rights Act 1998
- The Act provides that "everyone has the right to respect for his private life and family life, his home and his correspondence". To ensure that this right is protected employees whose calls are monitored should be given access to a private line over which personal calls can then be made, during their lunch break for example.
- (7)Telecoms License obligations – The Service Provision License Private and business use of a telephone system is regulated by certain DTI licenses. These include a similar requirement to that set by the Regulations that "every reasonable effort" to inform parties to a telephone conversation that recording may take place should be made.
ICO Website https://ico.org.uk/
DTI Website http://www.dti.gov.ph/dti/
US Call Recording Legal Compliance
A brief overview of U.S. state and federal laws:
One or two party consent
In the U.S. the individual states have different laws concerning telephone recording. These fall into two categories: Two party notification, and One party notification. Two party notification means both parties being recorded in a conversation must consent. One party notification only requires one of the parties being recorded to consent. Consent is usually granted by an notification recording at the beginning of the call, or with a audible beep tone. The recent California Supreme Court decision in Kearney v. Salomon Smith Barney, Inc., S124739 (July 13, 2006) showed that in a call from a One party consent state to a Two party consent state the Two party law takes precedence.
- Which states have two party consent laws?
- States with two party consent laws are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. All other states have one party consent laws, but even if your company resides in a one party consent states, if it might make calls to two party consent states it should either provide notification to both parties or not record these calls.
Telephone recording in businesses
Federal law requires the notification of at least one party in a call (18 U.S.C. Sec. 2511(2)(d)). However there is a “business telephone” exception that allows employers to record calls on phones they provide to employees.
- What is needed to get “consent?”
The FCC defines the methods that can be used to obtain consent as:
- Verbal or written consent given before the recording is made.
- Verbal notification before the recording is made. (This is the most common)
- An audible beep tone repeated at regular intervals during the course of the call.
Using recordings as legal evidence
One of the top uses of telephone recorders in business is to deter or protect against lawsuits. To do this the consent laws must be observed particular to the state called from and called to. Due to interpretation and exceptions particular to individual states the safest course of action is to get consent from both parties by giving verbal notification at the beginning of the call or having an audible beep tone.
5. SUPPORT SERVICE
5.1. The Customer shall have access to the Customer Support Line Monday to Friday between 9 a.m. and 5 p.m. but not including public holidays. The Customer Support Line shall respond to Customer queries within 4 hours with a phone call, by email or by remotely accessing the Customer’s System.
6. THE EQUIPMENT
6.1. Title to the Equipment shall at all times remain with ORBTALK unless purchased by the customer. Nothing in this Agreement or otherwise shall confer any interest or ownership right in the Equipment to the Customer.
6.2. The Customer shall not move, make any unauthorised repairs to or cause items to be attached to the Equipment without ORBTALK written permission.
6.3. During the Minimum Term and any extensions thereto, ORBTALK will maintain the Equipment in reasonable working order subject to the Customer’s responsibilities as particularised in the Agreement. ORBTALK shall have the right to replace the Equipment where it views this as an appropriate step.
6.4. At the end of the Agreement, the Customer shall forthwith make the Equipment available to ORBTALK for collection.
7. THE CUSTOMER’S RESPONSIBILITIES
7.1. The Customer shall not make any unauthorised or illegal use of the System or Solution.
7.2. The Customer shall ensure that the Equipment is not subject to any physical damage beyond reasonable wear and tear. The Customer shall be liable to ORBTALK for any such damage. The Customer shall be responsible for maintaining appropriate insurance coverage for the Equipment.
7.3. The Customer shall not allow any third party to perform maintenance work on the Equipment.
8. EMERGENCY (999 and 112) SERVICES
8.1. Access to emergency (999 and 112) services can be included as part of the Solution but only once the Customer has completed the Emergency information via the Orbtalk portal with their main site details.
8.2. Subject to clause 10 of the Terms and Conditions, ORBTALK shall have no liability to the Customer in the event that emergency (999) services are unavailable as a result of problems with the broadband network either at the Site(s) or in the public Internet Protocol environment.
9. INVOICING, CHARGES AND PAYMENT
9.1. Prior to the Commencement Date, the Customer shall complete the direct debit mandate authorising ORBTALK to debit the Charge from the Customer as per the terms of the Agreement.
9.2. The Customer shall be invoiced for the Solution monthly. All fixed charges shall be invoiced in advance. Any variable charges shall be invoiced in arrears. Payment shall be due within 14 days of the invoice date.
9.3. The Charge listed in the Order Form is exclusive of value added tax (VAT). The Customer shall be responsible for paying any VAT that may be chargeable for the Solution.
9.4. The charges for the Services shall be in accordance with our current price list from time to time and shall be charged from the Commencement Date.
9.5. We shall be entitled to amend these prices from time to time. If the rates are decreased such decrease will be reflected in your next bill. Should we increase the rates we shall provide you with 7 days notice of such increase and the increase will take effect from the end of that period. You shall be entitled to terminate this contract at any time with no penalty on providing us with 28 days notice before the price increase if the price increase exceeds 10% of current billed charges.
9.6. We may from time to time impose a reasonable maximum limit on the amount of charges incurred in any one month. If this limit is exceeded we may send you a bill before one is normally due and/or we may ask you to provide us with a security deposit.
9.7. We shall prepare and send to you a bill every month detailing charges for the previous month. The bill shall be payable within 14 days of receipt.
9.8. All bills shall be paid by way of Direct Debit from an account held by you at a financial institution approved by us (such approval not to be unreasonably withheld or delayed) unless agreed otherwise. Payment types other than Direct Debit may incur transaction charges. If a Direct Debit or cheque is dishonoured or cancelled we shall be entitled to pass on to you any administration fee, for example, where a direct debit is unpaid due to insufficient funds or cancellation, a £5 administration charge will be included on your next monthly bill.
9.9. Monthly charges incurred for periods of less than one month will be calculated on a pro rata basis.
9.10. The Orbtalk services are designed with self-care portals for customer administration. Full online training is provided during or after provisioning and setup. Further remote training assistance and guidance, online videos and documentation are also available. Any additional changes that are requested (other than technical support for faults or network outages) may be chargeable and will appear on your invoice as ‘Adds/Moves/Changes’ if that is the case. Examples of chargeable requests made to Support for non-fault related items are:
- Adding hold music or greetings
- Uploading or recording of voicemails
- Amending queues, ring groups or IVR’s
- Recording greetings
Bespoke development requests will be reviewed independently based on a requirements capture and quoted accordingly prior to any works being agreed or undertaken.
9.11. The rating engine rounds any very short duration call that is calculated to be under £0.005 GBP to a minimum call cost of 0.005 (half a penny).
10.1. Without prejudice to any of its rights or remedies, ORBTALK may terminate the Agreement immediately by serving notice in writing to the Customer if:
10.1a. the Customer makes any arrangement or compromise with its creditors, or has appointed or is the subject of any notice of the intended appointment of a receiver or manager, or is the subject of a voluntary or compulsory liquidation (other than for the purpose of solvent reconstruction or amalgamation) or an administration order of any proposal for a composition in satisfaction of its debts, or ceases to carry on business or suffers any execution or distress over its material assets;
10.1b. The Customer fails to pay any Charge when it is due under the Agreement after receiving 14 days written notice from ORBTALK;
10.1c. The Customer commits a breach of the Agreement and (in the case of a breach capable of being remedied) fails to remedy the breach after receiving 28 days written notice from ORBTALK;
10.1d. If a regulatory approval required by ORBTALK to provide the Solution is revoked or amended and not replaced by an equivalent approval.
10.2. Subject to the foregoing paragraph, the Agreement shall remain in force during the Minimum Term (3 months). The Agreement shall automatically renew for further yearly periods until ORBTALK or the Customer provide written notice to the other party at least 28 days in advance of the final day of the Minimum Term or the last day of the yearly extension then in force.
10.3. On termination of the Agreement:
10.3a. All Charges owed to ORBTALK by the Customer shall become immediately due and payable and ORBTALK shall be entitled to invoice the Customer for these Charges;
10.3b. The Customer shall immediately stop using the Equipment, System and Solution;
10.3c. The Customer shall procure that ORBTALK may enter the Site(s) during normal business hours to remove the Equipment. The Customer’s obligations in respect of the equipment will continue to apply until ORBTALK has taken possession of the Equipment;
10.3d. ORBTALK shall not be liable for any further provision to the Customer of the Solution.
10.4. If the Customer terminates this agreement prior to the expiry of the contracted term, they agree to pay a termination charge equal to one quarter of the balance of the service charge due up to the expiry of this agreement. In addition, the Customer agrees to pay a termination charge in respect of telephone call traffic, equal to the value of one average monthly call billing amount during the term of this agreement.
If ORBTALK terminate the Contract under clause 10.1 the Customer shall immediately pay us all outstanding charges for use of the Services up to the date of the termination.
10.5. Late payment - ORBTALK may charge the Customer interest on any overdue Charge from the date payment is due until the Charge is paid in full at a rate of 3% over the prevailing monthly Bank of England base lending rate.
11. LIMITATION OF LIABILITY
11.1. Neither party shall be liable to the other except as expressly set out in the Agreement.
11.2. Nothing in the Agreement excludes or restricts either party’s liability for (a) death or personal injury caused by the negligence of that party or (b) anything else which cannot be excluded or restricted by law.
11.3. Either party’s liability in contract, tort (including negligence) or otherwise arising out of or in connection with the Agreement shall be limited to £500,000 for one event or series of related events and £1 million in total for all events arising in any twelve month period.
11.4. Without prejudice to ORBTALK’S entitlement to the Charge, the parties shall not be liable to each other under the Agreement in contract, tort (including negligence) or otherwise for any loss of revenue, business, contracts, anticipated savings or profits or for any consequential or indirect losses.
12. FORCE MAJEURE
12.1 Neither party will be obliged to carry out any obligation under the Agreement where performance of such obligation is prevented due to any cause beyond the first party's reasonable control including but not limited to any act of God, severe weather, failure or shortage of power supplies, flood, lightning or fire, labour shortage or labour dispute, the act or omission of Government, highways authorities, other telecommunications operators or administrations or other competent authority, or difficulty, delay or failure in manufacture, production or supply by third parties of the System resulting from the same or a similar type of force majeure event
13. INFORMATION AND CONFIDENTIALITY
13.1. The Customer shall promptly provide ORBTALK (free of charge) with any information ORBTALK may reasonably require to enable it to activate and provide the Solution and may use this information for purposes of providing the Solution.
13.2. Unless expressly agreed in writing, neither ORBTALK nor the Customer shall use, copy, adapt, alter or part with possession of any information of the other which is disclosed under the Agreement unless ordered to do so by law. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or which the recipient obtained from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Any intellectual property rights in documents, drawings and information supplied to the Customer in connection with the Agreement remain vested in ORBTALK or the intellectual property right owner. Such documents, drawings and information are confidential and shall not be copied, disclosed or used (except for the purpose for which they were supplied) without ORBTALK prior written consent.
15. NONWAIVER AND SEVERABILITY
15.1. Failure by either party to enforce any of its rights under the Agreement shall not be construed as a waiver of that right unless the waiving party acknowledges the waiver in writing.
15.2. Part or all of any clause of the Agreement that is unenforceable or illegal shall be severed from the Agreement and will not affect the enforceability of the remaining provisions of the Agreement.
Notices under the Agreement must be made in writing and delivered by hand or sent by post to the other party to the address provided in the Order Form. The notice will be taken to have been delivered on the date it was delivered by hand or 24 hours after the date it was posted.
ORBTALK reserves the right to assign, subcontract or otherwise deal with all or any of its rights and obligations arising under this agreement. The Customer may not assign this contract without the prior written consent of ORBTALK, such consent not to be unreasonably withheld.
18.1. Any person or body that is not a party to the Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the Agreement.
18.2. From time to time it may be necessary to amend or improve these terms and conditions. In the event, we will give you 7 days notice of any changes by writing to you or publishing them on our website at www.orbtalk.co.uk
18.3. This Contract sets out the whole agreement between you and us for the provision of the Services and supersedes all prior arrangements, understandings and agreements between you and us.
19. GOVERNING LAW
The Agreement is governed by English Law and disputes will be subject to the exclusive jurisdiction of the English Courts.
© Orbtalk Ltd 2011. Reproduction prohibited without written permission. Specification subject to change at any time without notice. E&OE. All sales are subject to standard terms. Trademarks are acknowledged of their respective owners. No specific endorsement is implied by the mention of any particular service provider