TERMS AND CONDITIONS FOR THE PROVISION OF MEMORABLE TELEPHONE NUMBERS (“THE CONDITIONS”) Version 2.0

1 PROVISION  OF SERVICES

• TOFFOO agrees to use reasonable endeavours to provide the Services to the Customer on the terms and conditions of this Agreement provided that TOFFOO has accepted the Order. To the extent that there is any conflict between the terms of any Customer Order Form and these terms and conditions the terms of such Customer Order Form shall prevail.
• It is estimated that the commencement date of the Services will be no more than four (4) working days after acceptance by TOFFOO of the Order. TOFFOO will notify the Customer if this is not the case, but time is not of the essence for the provision by TOFFOO of the Services and TOFFOO will have no liability for failure to meet any proposed commencement date or any other date in this Agreement.
• The Minimum Period for each Service commences on the date of the initial connection of that Servic This Agreement will continue after the expiry of the Minimum Period unless and until terminated in accordance with clause 11.
• The Services  are  supplied  subject  to  all  limitations  of  the  Telecommunications  Network including the risk of imposed prefix or number changes.  In particular TOFFOO is unable to guarantee that all or any overseas systems will be able to access or be accessed by the Customer using the Telephone Number or that telephone keypads used on such systems will use the same alphanumeric combinations as are currently used in the UK

1.5       Each Order will with these terms and conditions comprise a separate Agreement between the parties unless the Order specifies that it is an amendment to an existing Agreement.

1.6      Where an Order covers more than one Telephone Number each Telephone Number shall be deemed the subject of a separate and severable contract.

1.7      Where the Customer’s name or if applicable company registered number on the Customer Order Form is incorrect or incomplete, the Customer agrees that TOFFOO may treat as being the Customer the individual or organisation that paid the Initial Service Charge for the Services.

1.8       TOFFOO agrees to provide a full refund for any telephone number which has been purchased (but not used) within seven (7) days of purchase, providing the number has not been advertised, has not received any telephone calls and has not been ported away nor is in the process of being ported away.

2 CUSTOMER  EQUIPMENT

2.1     Except as expressly set out in this Agreement, the Customer shall be responsible for providing all necessary hardware, software, network facilities and telecommunications services to access and make use of the

services.

2.2      The Customer shall ensure that its telecommunications equipment conforms at all times with the relevant standard designated by all relevant legislation and all applicable regulations, instructions and orders. TOFFOO shall not be under any obligation to connect or keep connected any Customer Equipment if it does not so conform or if in TOFFOO’s reasonable opinion it is liable to cause death, personal injury or damage to property or to impair the quality of the Services or to put TOFFOO in breach of its licences or its obligations to any third party.

2.3      Where  the  Customer  Equipment  is  located  at  a  TOFFOO  Site  the  Customer  will  remain  fully responsible for the risk to the Customer Equipment.

2.4      The Customer undertakes (if required in writing by TOFFOO to do so) to obtain and maintain the following insurance in respect of the Customer Equipment:

2.4.1    cover in an amount equal to the full replacement value of the Customer Equipment against fire, theft, accidental damage and all other risks; and

2.4.2    public liability insurance with cover in an amount that is reasonably satisfactory to TOFFOO, and on request  to provide  TOFFOO with certificates of cover in respect of the required insurance and evidence of payment of premiums.

2.5     The Customer is responsible for:

2.5.1    ensuring that the Customer Equipment meets the minimum technical specifications as notified by TOFFOO required to be compatible with the Services;

2.5.2    ensuring that the Customer Equipment is supplied and maintained in a safe condition, in good working order and that it complies with all applicable legislation or regulations;

2.5.3    obtaining all required licenses or other consents to enable TOFFOO to have access to and use of the Customer Equipment for the purpose of providing the Services including, but not limited to, any license  rights in  respect of software which forms  a part of the Customer  Equipment. The Customer is solely responsible for any costs associated with obtaining such licenses and consents; and

2.5.4    delivering  the  Customer  Equipment  to  the  TOFFOO  Site  prior  to  the  commencement  of  this

Agreement and promptly removing it from the TOFFOO Site on the termination of this Agreement. The Customer is solely responsible for transportation, installation and de-installation costs associated with the Customer Equipment.

2.6     TOFFOO shall have a lien over any Customer Equipment to secure all sums due and unpaid under this Agreement and the Customer will not be entitled to remove the Customer Equipment from the TOFFOO Site unless and until TOFFOO have received all outstanding sums due to it.

2.7      TOFFOO reserves the right to relocate the Customer Equipment to an alternative TOFFOO Site on giving to the Customer reasonable notice.

2.8      The Customer shall indemnify TOFFOO against any claims, proceedings or threatened proceedings from third parties and against any loss or damage suffered by TOFFOO arising from its possession or use of the Customer Equipment or from the location of the Customer Equipment at the TOFFOO Site, and for all costs and expenses reasonably incurred by TOFFOO in investigating and defending itself in relation to any such claims, proceedings or threatened proceedings.

3 SERVICE FAILURES

3.1     TOFFOO will use reasonable endeavours to provide the Services but TOFFOO shall not be liable for any Service Failure resulting from factors outside TOFFOO’s control.  In particular TOFFOO is not responsible for the operation of the Telecommunications Network.

3.2      TOFFOO does not guarantee that the Services will be continuously available to the Customer or free from Service Failures.

3.3      The Customer shall promptly report to TOFFOO’s helpdesk referred to in clause 4.2 any Service Failure it experiences (receipt of which will be logged by TOFFOO), giving sufficient information to enable TOFFOO to investigate the claim.

3.4     If no Service Failure is found after such investigation, the Customer shall pay such charges as may be notified from time to time in respect of reasonable costs and expenses incurred.

3.5     Where any Service has been unavailable to the Customer for a continuous period of more than seven (7) days (the “Unavailable Period”) and not as a result of any action or omission of the Customer or any event beyond the reasonable control of TOFFOO, the Customer may apply to TOFFOO for a rebate of any time based Charges in respect of the Unavailable Period (from the time the fault report  is  logged  by  TOFFOO  until  the Service  is restored)  and TOFFOO  shall allow the Customer  a proportionate rebate of such time based Charges and may credit such amount against subsequent invoice(s).    TOFFOO  shall  have  no  other liability  for failure  or  unavailability  of the Telecommunications Network.

4 TOFFOO’S RIGHTS  AND OBLIGATIONS

4.1     TOFFOO  reserves  the  right  from  time  to  time  to  improve  or  alter  the  Services  as  it  deems appropriate, provided that such changes do not substantially change the nature of the Services.

4.2     TOFFOO will provide an after sales service and help desk contactable by telephone as may be notified from time to time.

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 TOFFOO in connection with the Services or any of them;

5.1.2    pay TOFFOO’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 TOFFOO against all liabilities, claims, damages, losses, costs and proceedings howsoever arising from any improper use of the Services or other breach of the Agreement and all costs and expenses reasonably incurred by TOFFOO in investigating and/or defending itself in relation to any such claim or proceedings;

5.1.5   indemnify and hold harmless TOFFOO 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    provide all information and assistance reasonably required by TOFFOO to enable TOFFOO to perform its

obligations under this Agreement, including providing or procuring access to the Customer’s premises and a suitable and safe working environment; and

5.1.7    promptly notify TOFFOO if it becomes aware of any threat to the security of the Services.

5.2     The Customer shall not use the Services in any way which would:

5.2.1    contravene the Acceptable Use Policy (where applicable);

5.2.2    compromise the security of the Equipment or other systems, including by introducing viruses or

failing to employ appropriate security procedures;

5.2.3    enable or permit unauthorised access by the Customer or third parties to data stored on the

Telecommunications Network;

5.2.4    contravene or cause TOFFOO to contravene any Regulation;

5.2.5    be for any improper, immoral or unlawful purpose;

5.2.6    enable or permit unauthorised access to any data stored on any Telecommunications Network;

5.2.7    cause a degradation of service to any other customer of TOFFOO;

5.2.8    involve the sending of unsolicited marketing or advertising materials;

5.2.9    result in the transmission or storage of any material or a pornographic, obscene, defamatory, menacing of offensive nature or material which is a nuisance, hoax, abusive, racist or indecent or which would result in the breach of any third party’s Intellectual Property Rights, confidential information or privacy;

5.2.10  breach or cause TOFFOO to breach any applicable data protection legislation including, but not limited to, the Data Protection Act 1998;

5.2.11  cause any overload of any Telecommunications Network without providing TOFFOO with reasonable notice; or

5.2.12  cause TOFFOO to lose or breach any authorisation by which it is authorised to provide the Services.

5.3     The  Customer  is  solely  responsible  for  safeguarding  its  data  by  taking  backup  copies,

maintaining  a  disaster  recovery  process  and  through  any  other  means  that  it  judges appropriate.

5.4      To enable TOFFOO to perform its obligations under this Agreement, the Customer shall obtain all requisite  licences,  consents and permissions  and permit  or procure permission for TOFFOO,  its agents or subcontractors to have access to the Customer’s premises and shall provide such reasonable assistance and information as TOFFOO requests from time to time.

5.5      TOFFOO will routinely work during normal office hours. Any request by TOFFOO to carry out work at other times may be refused by the Customer. Any request by the Customer that TOFFOO carry out work at other times may be refused by TOFFOO, but if accepted such work will be charged to the Customer at TOFFOO’s then current standard rates.

6 CHARGES  AND PAYMENT

6.1     The  Connection  Charge  and  the  Initial  Service  Charges  are  payable  on  completion  of  the Customer Order Form, production of Invoice or at time of purchase where purchasing online at www.phonenumbers.store;

6.2      Charges are calculated on a monthly basis and are payable within seven (7) days of the date of invoice unless a direct debit mandate is in place. TOFFOO will provide Customers with a copy of their monthly invoice by email as well as posting invoices on the Customer portal, accessible from the TOFFOO websites, or otherwise as may be notified to the Customer. Such invoices shall include such minimum level of itemisation as may be prescribed in the Regulations and such further itemisation as the Customer may reasonably require except in relation to any calls made from any Telephone Number which are free of Charge to the Customer, including calls to help lines. If Charges are ascertainable in advance they may be invoiced in advance.  In respect of unascertainable future charges TOFFOO may require a reasonable security deposit.

6.3     Unless otherwise agreed in writing TOFFOO requires the Customer to pay all Charges by monthly direct debit.   In the event that the Customer is unwilling or unable to pay by TOFFOO’s chosen automated means, or such automated means are not set up or fail for any reason before TOFFOO invoices the Customer, an additional administration charge shall be levied for each invoice paid by any other method. Administration charges may also be added by TOFFOO for any Direct Debit returned by the bank as unpaid.

6.3.1    TOFFOO reserves the right to amend charges from Monthly to Annual (payable in advance) where monthly payments are not met in accordance with Clause 6.3.

6.4     Certain Services (including but not limited to divert to mobile or international) are subject to additional costs  which are outside the control of TOFFOO.   TOFFOO shall be entitled to charge the Customer for these Services in accordance with the Charges set out in the Customer Order Form (or on a pass-through basis if no such Charges are specified).   Operators may increase their charges to TOFFOO from time to time and where any such charges to TOFFOO are increased it shall forthwith advise the Customer and be entitled to increase its Charges for the relevant Services accordingly.  For the avoidance of doubt divert to mobile charges imposed by TOFFOO shall be in accordance with the charges of the network of the range holder for the target destination number.

6.5     TOFFOO shall be entitled to recover from the Customer any charges levied on TOFFOO in respect of calls

made to any of the Telephone Numbers from a public payphone.   TOFFOO will use reasonable endeavours to notify the Customer in the event that such charge varies from time to time.

6.6      Overdue payments shall be subject to interest at an annual rate equal to the statutory interest rate chargeable under the Late Payment of Commercial Debts (Interest) Act 1998 both before and after judgement.

6.6.1    Where  third -party  debt collection  services  are  used,  overdue payments  will  be subject  to additional commission charges levied by the debt collection agency.

6.7     Charges are exclusive of Value Added Tax which will additionally be payable at the applicable rate(s).

6.8     TOFFOO shall in respect of each Service be entitled to review and vary from time to time the Charges and introduce new charges.  Without prejudice to clause 6.4 the varied or new charges shall take effect no earlier than two (2) weeks after notification to the Customer.

6.9      Charges may also be imposed in the following circumstances brought about by a Customer request for:

6.9.1    change to service configuration such as (but not limited to) change of target destination, upload of new audio files and change to service features;

6.9.2    change of Operator for any Telephone Number;

6.9.3    change of service provider upon termination of this Agreement in respect of any Telephone Number;

6.9.4    transfer of any Telephone Number to another subscriber; or

6.9.5    change of any Service, including a change of address or location for the Services.

6.10    The Customer shall not dispute the amount of any Operator generated Charges unless and then only to the extent that TOFFOO is entitled to dispute such Charges with the Operator.

6.11    TOFFOO shall be entitled to impose a Charge in the event that the Customer requests and TOFFOO agrees, to reconnect the Telephone Number following disconnection under clause 7.

6.12    TOFFOO shall provide to the Customer call statistics on a monthly basis via the customer portal. The data supplied by the relevant Operator to TOFFOO shall be conclusive for the purpose of calculating any such Rebate.

6.13    The Customer shall deliver to TOFFOO an invoice for the Rebate no later than thirty (30) days after the issue by TOFFOO of the notification of Rebate in accordance with clause 6.12. TOFFOO shall pay any outstanding Rebate payments within thirty (30) days of the date of the Customer’s invoice or (if later) within seven (7) days of the applicable sums being paid to TOFFOO by the relevant Operator. The Customer shall not be entitled to submit an invoice later than thirty (30) days after the date of  the  relevant  notification  of  Rebate  nor  shall  TOFFOO  be  required  to  pay  any  such  invoice submitted after that period.

6.14    TOFFOO shall be entitled to withhold any Rebate due to the Customer:

6.14.1  upon the suspension of the Service in accordance with clause 8;

6.14.2  if TOFFOO suspects the Customer is in breach of any term of this Agreement or any other agreement between the parties;

6.14.3  if  TOFFOO  suspects  the  Customer  has  obtained  or  increased  its  entitlement to  any  Rebate  by fraudulent or improper means;

6.14.4  if TOFFOO has not received the corresponding payment from the Operator;

6.14.5  the Operator  requires repayment of any payment made to TOFFOO in relation to the relevant Service and, if such withheld Rebate is insufficient to make such repayment, the Customer shall pay the balance to TOFFOO; or

6.14.6  to meet any fines or administrative charges payable by TOFFOO to PhonePayPlus in relation to the relevant  Service  and,  if  such  withheld  Rebate  is  insufficient  to  make  such  payment,  the Customer shall pay the balance to TOFFOO.

6.15    TOFFOO shall be entitled to set off any Charges due to TOFFOO against any Rebate due to the Customer, but the Customer shall have no right to deduct any Rebate from any Charges due to TOFFOO, unless otherwise agreed in writing by TOFFOO.

6.16    Where a telephone number is reserved via the www.phonenumbers.store website and a non-refundable deposit payment is taken by payment card, the telephone number will be reserved for 30 days.  If the telephone number is then purchased within the 30 day period, the deposit will be deducted from the overall cost of the telephone number.  If the telephone number is not purchased within 30 days and no extension has been granted, the non-refundable deposit will be retained by TOFFOO.

6.17    Where an Offer is made via the www.phonenumbers.store website for a telephone number and a securing payment is taken by payment card and that Offer is accepted by TOFFOO, the telephone number will be reserved for 7 days.  The Customer must pay the balance due within 7 days otherwise the telephone number will be returned to sales and the securing payment will be forfeited.

6.18    Where an Offer is made via the www.phonenumbers.store website for a telephone number and a securing payment is taken by payment card and that Offer is declined by TOFFOO, the telephone number will be returned to sales and the securing payment will be refunded to the Customer’s payment card.

7 TOFFOO’S LIABILITY

7.1      TOFFOO does not exclude or restrict any liability to the Customer in the case of fraud or for death or personal injury attributable to its own negligence or that of its employees or agents.

7.2     TOFFOO shall exercise reasonable skill and care in the provision of the Services.

7.3     Except as stated expressly otherwise in this Agreement, in relation to the provision of Services,

TOFFOO 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 undertakings, 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.

7.4      TOFFOO will have no liability for the security of the Customer’s use of the Services or for any loss or corruption of any of the Customer’s data and the Customer shall be responsible for providing such safeguards as it deems appropriate.

7.5     TOFFOO shall not be liable for any indirect or consequential losses, damage or expenses suffered by

the Customer including (but not limited to) loss of anticipated sales profits or savings, goodwill, business contracts or losses resulting from third party claims.

7.6      Subject to clause 8.1, in no circumstances shall TOFFOO’s liability to the Customer of any nature arising  out of  or  in  connection  with this  Agreement  exceed  two  thousand  pounds sterling (£2,000) for a single incident or series of related incidents.

8 SUSPENSION OF SERVICES

8.1     Without prejudice to its rights under clause 11.1, TOFFOO may suspend all or part of the Services or

any of them for so long as reasonably required or disconnect any Telephone Number at any time subject to clause 8.3 if:

8.1.1    the Customer has not paid all or any part of any invoice for the Services in accordance with clause 7 within fourteen (14) days from receiving written notice from TOFFOO that it is due and demanding payment;

8.1.2    the Customer is in material breach of this Agreement or any other agreement between the parties;

8.1.3    TOFFOO has reasonable cause to believe that the Customer or any third party is acting in breach of the Acceptable Use Policy;

8.1.4    technical  limitations exist or arise which make the provision of the Services impossible or materially limit the functionality or performance of the Services;

8.1.5    if and to the extent that in TOFFOO’s opinion the Customer’s conduct is likely to result in the breach of any law or is otherwise prejudicial to TOFFOO’s interests;

8.1.6    the Customer acts in such a way or permits anything to be done which, in the reasonable opinion of TOFFOO,  relates to the Services and may impair or jeopardise the operation of the

Services or any part of the Telecommunications Network;

8.1.7    required to do so directly or indirectly by law, the Operator, OFCOM or PhonePayPlus or under any Regulation;

8.1.8    such action is required for modification or maintenance or in cases of emergency; or

8.1.9    TOFFOO has reason to believe the Services are being used for unlawful, fraudulent or improper purposes.

8.2      In the case of any proposed disconnection pursuant to clause 8.1, TOFFOO shall give the Customer due notice of any consequent service interruption or disconnection and, except in cases of fraud, persistent late payment or non-payment, deliberate cancellation of direct debit mandate, any such service interruption shall be restricted, as far as technically feasible, to the Service concerned.  In other cases, TOFFOO shall give, as far as technically feasible, such notice as is reasonable in the circumstances.

8.3      The  Customer  shall  remain  liable  for  all  Charges  during  any  period  of  suspension  or disconnection attributable to the actions or omissions of the Customer and for any subsequent reinstatement or re-connection.

9 DATA PROTECTION ACT

9.1    Information  that  the  Customer  provides  to  TOFFOO  about  private  individuals  relevant  to  TOFFOO’s dealings with the Customer will be stored within TOFFOO’s computer system and manually for so long as may be necessary to provide the Services and until any Charges cannot be lawfully challenged, subject to any maximum and/or minimum periods prescribed by any Regulation.

9.2    For the purpose of the Data Protection Act 1998 (the ” Act”) TOFFOO  will  only use such information for legitimate purposes, including:

9.2.1  communicating with the individuals concerned as necessary in connection with the Customer’s

dealings with TOFFOO;

9.2.2  communicating with the Customer in connection with TOFFOO’s services generally;

9.2.3  providing it to the Operator to enable the provision of the Services or to third parties as required by the Customer or by law or as necessary in connection with the Customer’s dealings with TOFFOO (including for inclusion in publicly available directories).  Those third parties may be outside the European Economic Area;

9.2.4  providing it to licensed credit-reference agencies for credit checks to be undertaken; or

9.2.5  providing it to the police and other enforcement agencies for the investigation of fraudulent,

criminal, terrorist or other illegal activities.

9.3    By giving TOFFOO that information the Customer consents to TOFFOO holding, using and disclosing it for

those purposes.

9.4    TOFFOO 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.

9.5    TOFFOO 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.

10 TERMS  OF THIS AGREEMENT

10.1     TOFFOO may at any time amend the terms of this Agreement:

10.1.1  On giving not less than one month’s notice to the Customer such notice to be sent   to the Customer by email or letter; or

10.1.2  with  immediate  effect  on  giving  to  the  Customer  such  notice  as  is  reasonable  in  the circumstances if so required by Regulation or by PhonePayPlus or OFCOM or any other relevant authority, or to reflect changes to any relevant contract with an Operator.

10.2    The Customer will be bound by such amended terms if it continues to use the Services after the date of any such amendment, save that the Customer may by not less than one (1) month’s counter-notice expiring on or before the date of the change terminate this Agreement.

11 TERMINATION

11.1    TOFFOO may terminate this Agreement by giving the Customer not less than one (1) month’s written notice expiring at or after the end of the Minimum Period. The Customer may terminate this

Agreement in accordance with clause 11.3.

11.2    Without limiting the generality of clause 11.1, TOFFOO may terminate this Agreement as a whole or in part immediately by notice in writing to the Customer if:

11.2.1  the Customer is in material breach of any of the terms of this Agreement which cannot be remedied, or in material breach which can be remedied but is not remedied within thirty (30) days  of  the  date  of  written notice  from  TOFFOO  specifying  the  breach  and  requiring  it  to  be remedied, or commits persistent breaches of the Agreement;

11.2.2  the Customer fails to pay any sum and TOFFOO has the right to suspend or disconnect under clause 8.1, subject to clause 8.2;

11.2.3  the Customer refuses to pay sums due under the Agreement in advance following a request by TOFFOO in the event that the customer has previously failed to pay a sum due under the contract or has paid such sums late;

11.2.4  the Customer (being an individual) becomes bankrupt or is unable to pay his debts within the meaning of ss 267 and 268 Insolvency Act 1986 or (being a company) becomes insolvent or goes into liquidation either voluntary or compulsory (other than for the purposes of reconstruction or amalgamation) or is wound up, or an administrator, receiver or administrative receiver is appointed over all or any assets of such company or an encumbrancer takes possession of all or any such assets;

11.2.5  any licence, permission, agreement or authorisation granted to the Customer, the Operator or to TOFFOO necessary for the provision of the Services is suspended, revoked or terminated; or

11.2.6  TOFFOO is unable to recover from the Operator revenue payments due to the Customer.

11.3    Subject to clause 16, the Customer may terminate this Agreement, as a whole or as it relates to any Telephone Number or any Service, as applicable:

11.3.1  at any time, but subject to

(a) giving a  minimum  of thirty (30)  days’ prior written notice to expire at the end of the

Minimum Period, or any anniversary thereof; and

(b) the Customer having paid all outstanding sums due under the terms of this Agreement;

11.3.2  upon the transfer of the Telephone Number the subject of the Agreement to another Operator or service provider (pursuant to clause 16.4);

11.3.3  in accordance with clause 10.2; or

11.3.4  immediately by written notice if TOFFOO is in material breach of this Agreement which is not remedied within thirty (30) days of the date of written notice from the Customer specifying the breach and requiring it to be remedied.

11.4    Any termination of this Agreement shall be without prejudice to the rights of either party accrued to the date of termination.

11.5    If the Customer terminates the Agreement in whole or in part under clause 11.3.1 or 11.3.3, the Customer shall be liable to pay TOFFOO any compensation for the Loss Of Revenue due in respect of the period from the date of termination to the expiry of:

(a) the Minimum Period (if still current at the time of termination); or

(b) (if the Minimum Period is no longer current at the time of termination) any subsequent twelve (12) month period which commenced at the expiry of the Minimum Period (or subsequent anniversary thereof), together with any termination charges specified in the Customer Order Form or otherwise notified to the Customer.

11.6    On termination of this Agreement for whatever reason, each party shall promptly return to the other any property or information belonging to such other party.

12 NOTICES

12.1    TOFFOO shall address all invoices and serve any notices on the Customer pursuant to this Agreement electronically, in writing or by post to the address set out in the Order or the Customer’s registered office or any other address provided by the Customer for this purpose. The Customer shall be responsible for notifying TOFFOO of any change in the Customer’s contact details and TOFFOO shall not be liable  for  any loss,  expense or damage suffered or incurred by the Customer resulting from any failure by the Customer to notify TOFFOO of any change of contact details.

12.2    The Customer shall address all invoices and serve any notice pursuant to this Agreement by post on TOFFOO at its address specified on the Customer Order Form.

12.3    All posted documents shall be deemed served forty-eight (48) hours after posting.

12.4    The  Customer  shall  be  deemed  to  have  received  notification  of  any  information  on  TOFFOO’s

applicable prices and tariffs and on TOFFOO’s standard terms and conditions from time to time in respect of access to and use of the Services which are sent to the Customer or published by TOFFOO on its website or otherwise made generally available to its customers.

13 CONFIDENTIALITY

13.1    Neither party shall disclose to any third party without the prior consent of the other party any

confidential information which is received from the other party as a result of this contract. Both parties agree that any confidential information received from the other party will only be used for the purposes of providing and receiving Services. These restrictions do not apply to any information which:

13.1.1  was or becomes generally available to the public other than as a result of a breach of an obligation under this clause 13;

14.1.2  was acquired by a third party owing no obligation of confidence in respect of the information;

or

13.1.3  was known to a party before the information was disclosed to it by the other party.

13.2    Notwithstanding  clause  13.1  TOFFOO  will  be  entitled  to  disclose  the  Customer’s  confidential

information to a third party to the extent required by any court of competent jurisdiction or by a governmental or regulatory authority, or where there is a legal right, duty or requirement to disclose such confidential information.

14 INTELLECTUAL PROPERTY

14.1    Except as expressly set out in this Agreement, all Intellectual Property Rights in TOFFOO’s Equipment

will remain with TOFFOO or TOFFOO’s suppliers or licensors.

14.2    Where Software is provided to enable the Customer to make use of the Services, TOFFOO grant to

the  Customer  a  non-exclusive  non-transferable  licence  to  use  the  Software  solely  for  the purpose of receiving the Services. Where any additional terms and conditions apply to its use of Software TOFFOO will make these known to the Customer and the Customer will, if requested, sign any agreement reasonably required to protect the owner’s rights in the Software.

14.3    The Customer will not copy, decompile or modify the Software without TOFFOO’s prior written consent (except as permitted by law) and will not distribute or disclose the Software to any third party.

14.4    The Customer acknowledges that TOFFOO has no obligation to review or edit any of its information

or third-party information which the Customer stores on or transmits through the Equipment or uses in connection with the Services. However, TOFFOO reserves the right to access, retain and disclose copies of such information for the purposes of:

14.4.1  correcting, maintaining and improving the Services;

14.4.2  complying with any applicable laws, Regulations, statutory instruments or the terms of TOFFOO’s licences and contracts;

14.4.3  observing the performance of the Services;

14.4.4  retaining a record of activity on TOFFOO’s Equipment or systems;

14.4.5  complying with any request for information or disclosure from a court or other appropriately authorised body; or

14.4.6  ensuring that the Customer is complying with the Acceptable Use Policy.

15 FORCE MAJEURE

15.1    Neither party shall be liable to the other party for any delay in performing or failure to perform

any of its obligations under this contract (other than the obligation to pay the Charges) which occurs as a result of circumstances beyond a party’s reasonable control (a Force Majeure Event) including (but not limited to) terrorist attacks, riots, fire, explosion, accidental damage, adverse weather conditions, power failures, non-availability of any third party telecommunication equipment.

15.2    If the Force Majeure Event continues for a continuous period of more than three months, then

either party may terminate this contract by giving not less than fourteen (14) days’ written notice to the other party.

16  ALLOCATION AND USE OF TELEPHONE  NUMBERS  AND CODES

16.1    Where TOFFOO allocates to the Customer any telephone numbers or codes as part of the Services, the Customer  acknowledges that it will not acquire any legal, equitable or other rights  in relation to any numbers or codes.

16.2    TOFFOO may on giving the Customer notice withdraw or change any such numbers or codes.

16.3    The Customer may not sell or transfer or seek to sell or transfer any numbers or codes allocated by TOFFOO without the prior written consent of TOFFOO.

16.4    The Customer may port numbers to TOFFOO and may also port numbers to other carriers with whom TOFFOO has porting agreements. Any porting is subject to:

16.4.1  payment of all outstanding sums due to TOFFOO right up until the point the relevant number(s) is/are actually ported to another carrier;

16.4.2  payment in respect of any Loss Of Revenue during the:

(a) remainder  of the Minimum Period (if the porting takes place prior to the end of such period); or

(b) any subsequent twelve (12) month period which commenced at the expiry of the Minimum Period, or subsequent anniversary thereof, (if the Minimum Period is no longer current at the time of termination); and

16.4.3  the  Customer  being  responsible  for  ensuring  the  destination  number  it  supplies  to  TOFFOO  is accurate for the purposes of porting.

16.5    All Intellectual Property Rights or other rights in any numbers or codes allocated by TOFFOO shall at all times, as between TOFFOO and the Customer, remain vested in TOFFOO.

16.6     Where the Customer has purchased a telephone number outright from TOFFOO and all payments have been received by TOFFOO then the Customer may port the telephone number to another provider at any time, free of charge.  Any additional services for use with the telephone number which have been contracted as part of or during this Agreement will continue to be charged as agreed.

17  GENERAL

17.1    No delay or failure by TOFFOO to exercise any of its rights under these terms and conditions or concession  granted  shall  prevent  subsequent enforcement of those  rights  or constitute  an agreement to provide the same concession again.

17.2    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) that are not set out in this Agreement.

17.3    The Customer acknowledges that the only remedy it has against TOFFOO for any misrepresentation or untrue statement shall be a claim for damages for breach of this Agreement.  However, if TOFFOO has made any fraudulent representations upon which the Customer has relied, the Customer may pursue TOFFOO, and the Customer shall be entitled to all available remedies under English law.

17.4    This Agreement shall supersede all prior representations, arrangements, understandings and agreements between the parties relating to the subject-matter contained herein and this Agreement shall constitute the entire, complete and exclusive agreement and understanding between the parties hereto.

17.5    No variation of this Agreement or waiver hereunder shall be effective unless agreed in writing by TOFFOO.

17.6    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.

17.7    The Customer shall not assign transfer or sub-contract or try to assign any or all of its rights and

responsibilities under the Agreement.  TOFFOO may sub-contract transfer its rights and obligations hereunder to any third party or transfer the same to a new service provider.

17.8    Except as otherwise provided in an applicable Customer Order Form, the Customer shall not resell or otherwise make the Services available to any other person, or sell or transfer any Telephone Number to any third party without the prior written consent of TOFFOO, save that the Customer may port any Telephone Number to TOFFOO or to any other carrier with which TOFFOO has a porting arrangement.

17.9    Where two or more persons constitute the Customer their liability is joint and several.

17.10  Nothing within this Agreement is intended to create third party rights pursuant to the Contracts

(Rights of Third Parties) Act 1999.

17.11  This  Agreement  is  governed  by  English  Law  and  the  English  Courts  shall  have  exclusive jurisdiction as regards any dispute

DEFINITIONS

“Acceptable Use Policy”               means TOFFOO’s policy for the use of the Services as revised by TOFFOO from time to time;

“Account”                                         means the record of all Charges due from a Customer;

“Agreement”                                   means the agreement between TOFFOO and the Customer in respect of the Services comprising the Customer Order Form and these terms and conditions;

“Charges”                                         means: (i) the charges payable in respect of the Services (as amended

from time to time in accordance with clause  6.8) as set out in the Customer  Order  Form  or  as  otherwise  notified  to  the  Customer before they are incurred; and (ii) those charges relating to the Customer’s actual use of the Telephone Number(s) (i.e. the “call traffic” associated with such Telephone Number(s)), together with all appropriate taxes and any interest due in accordance with clause 6.6;

“Customer”                                      means the party named as such on the Customer Order Form to whom TOFFOO agrees to provide Services and by whom Charges are payable;

“Customer Equipment”                 means any hardware and/or software owned, controlled or licensed

by the Customer and provided to TOFFOO by the Customer or otherwise made available for the purposes of providing the Services;

“Customer Order Form”                means  TOFFOO’s  customer  order  form  for  provision  of  the  Services completed by or on behalf of the Customer and agreed by TOFFOO;

“Equipment”                                   means any hardware and/or software used by TOFFOO  to provide the

Services;

“Intellectual Property Rights”      means all copyright, database rights, rights in software, topography rights,  design  rights,  trade  marks,  trade  names,  utility  models, patents, domain names and any other intellectual property rights of a similar nature (whether or not registered) subsisting anywhere in the world now or in the future;

“Invoice”                                 Document provided to the customer prior to or directly after payment being received;

“Loss Of Revenue”                          means the revenue (including all Charges) which would have been

due or which TOFFOO could reasonably have expected to have earned until the expiry of the Minimum Period (or expiry of a subsequent twelve (12) month period), and shall be calculated using the average monthly revenue (including all Charges) earned over the previous six (6) months to calculate the estimated monthly revenue for the each of months remaining until the expiry of the Minimum Period or subsequent twelve (12) month period;

“Lost Revenue Period”                  has the meaning given in clause 11.5;

“Minimum Period”                         means  the  minimum  period  during  which  TOFFOO  shall  provide  the relevant Service and shall be the period identified as the “Minimum Period” in the Customer Order Form or if no such period is specified twelve (12) months;

“OFCOM”                                         means the Office of Communications;

“Operator”                                       means the provider of access to the Telecommunications Network;

“Order”                                             means a Customer’s order for services made on a Customer Order

Form;

“PhonePayPlus”                              means the regulatory body now known as PhonePayPlus and formerly known as the Independent Committee for the Supervision of Standards of Telephone Information Services;

“Porting” or “Port”                        means to move the end-user’s destination number or services from one Operator to another Operator;

“Rebate”                                           means  a  payment  due  to  the  Customer  in  accordance  with  the Customer Order Form;

“Regulation”                                   means  law  or  regulation  affecting  the  provision  of  the  Services, including the General Conditions published by OFCOM from time to time, and any applicable or relevant rule or regulation published by PhonePayPlus;

“Service Failure”                            means any failure, error or defect in the provision of the Services by TOFFOO but excludes failures, errors or defects arising from, caused by or contributed to by the Customer’s acts or omissions or by third parties including other providers of telecommunications, computers or other equipment or services including internet services or any failure, error or  defect  arising  as  a  result  of  causes  beyond  TOFFOO’s  reasonable control;

“Services”                                         means the services as set out in one or more Customer Order Forms for the Customer or otherwise notified in writing by TOFFOO to the Customer;

“Software”                                       means  the  software  provided  by  TOFFOO  to  the  Customer  for  the

purposes of enabling the Customer to use the Services; “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” number as defined by PhonePayPlus from time to time and 0871  numbers if applicable) allocated to a Customer as part of the Services;

“TOFFOO”                                                 means  Toffoo Limited  (Company  Number  11379355)

Whose registered office is at Thames House, Roman Square, Sittingbourne, Kent, ME10 4BJ and the trading names of XL Telecom, PhoneNumbersStore  and UK Payphone Directory; and

“TOFFOO Site”                                         means the premises owned or controlled by TOFFOO or by its contractor at which any of the Equipment and/or Customer Equipment is located or is to be located.