1.1 In this Agreement "Service" means such telecommunication service
as Gotalk may make available to the person(s), firm or Company requesting the
Service ("the Customer") enabling calls to be made by means of the
Gotalk network and such additions or variations to it as Gotalk may
1.2 The Service shall be paid for in full in advance by the Customer
1.3 If the Customer is two or more persons each of those persons shall be
jointly and severally liable for the performance of the obligations of the
Customer under this Agreement.
1.4 Gotalk is a registered trademark of WaveCrest (UK) Ltd
whose registered office is at 1st Floor, Bishopsgate Court, 4-12 Norton Folgate, London, E1 6DB.
2.1 This Agreement shall come into full force and effect either from the date of
acceptance by Gotalk of the Initial Payment referred to in Condition 3 below on
signature of the application form or on first use of the Service by the Customer
whichever shall be [applicable] earlier.
2.2 The Agreement may be terminated by either party on prior written notice in
accordance with condition 10.1.3.
3.1 The prices for the Service shall be as stated in Gotalk's tariff as current
from time to time. Although Gotalk will endeavour to give not less than 30
days' prior written notice to the Customer of any changes in prices it reserves
the right to alter rates without such prior notification. Rates displayed in
advertisements, promotional literature, tariff sheets and elsewhere may be
rounded to the nearest penny and include VAT. A full rates list is available on
request. Calls are charged in thirty second increments.
3.2 All sums due to Gotalk under this Agreement shall be paid in full by the
Customer without any set-off or counterclaim whatsoever except as required by
3.3 The Customer shall pay an initial payment to Gotalk upon application for a
Service (the "Initial Payment"). Gotalk will credit the Initial
Payment against the Customer's account. If the Customer does not make use of the
Service within six months of the Initial Payment Gotalk will be entitled to
retain the Initial Payment.
3.4 The Customer shall pay an Initial Payment to Gotalk of an amount not less
than £20 or as otherwise notified in writing or as specified in any literature
as current from time to time.
3.5 The amount may be increased or topped-up at any time by making further
contributions in multiples of not less than £5 or in such multiples may be
specified in any literature as current from time to time.
3.6 Subject to the deduction of an amount to cover Gotalk's administrative
expenses Gotalk will refund the Customer by re-crediting it via credit card or
issuing a cheque within 30 days of a written request for the same from the
Customer. Any such written request must be marked for the attention of the
"Prepaid Credit Controller", to Gotalk, 1st Floor, Bishopsgate Court, 4-12 Norton Folgate, London, E1 6DB.
3.7 The Customer may only make use of the Service so long as there is a prepaid
credit balance in favour of the Customer in the Gotalk account.
3.8 If for any reason Gotalk fails to disconnect the call on exhaustion of the
Customer's prepaid credit, any subsequent minutes will be charged at the rate
applicable and will be invoiced accordingly.
3.9 Gotalk reserves the right to charge interest on all outstanding amounts
owed to Gotalk and not paid in accordance with this Agreement. Until payment in
full is received by Gotalk interest shall be charged at the rate of 2% above
National Westminster Bank PLC's base rate for the time being per month. Interest
shall accrue notwithstanding termination of this Agreement. The Customer shall
also pay all legal fees on a full indemnity basis and other costs of collection
of overdue amounts, if any.
3.10 All charges payable under this Agreement shall be calculated by reference
to data recorded or logged by Gotalk and not by reference to data recorded or
logged by the Customer.
4 USE OF THE SERVICE
4.1 The Customer undertakes to use the Service in accordance with such
conditions as may be notified in writing to the Customer by Gotalk from time to
time and in accordance with the provisions of the Telecommunications Act 1984
("the Act") License granted under Section 7 of the Act under which the
Service is operated, any direction of the Director General of Telecommunications
or other competent authority and any licence which governs the running of a
telecommunications system by the Customer.
4.2 The Customer undertakes not to use the Service:
4.2.1 as a means of communication for a purpose other than that for which the
Service is provided or as may be set out from time to time in Gotalk's Service
4.2.2 for the transmission of any material which is or is intended to be a hoax
call to emergency services or is of a defamatory, offensive, abusive, obscene or
menacing character; or
4.2.3 in a manner which constitutes a violation or infringement of the rights of
any other party.
4.3 The Customer shall indemnify Gotalk against all liabilities, claims,
damages, losses and expenses arising from or in any way connected with any use
proscribed in this Condition 4.
4.4 The Customer undertakes that any Customer apparatus used in connection with
the Service shall be in good working order and conform at all times to the
relevant standard or approval for the time being designated under Section 22 of
the Act and the Customer shall at all times comply with the conditions of such
standard or approval. Gotalk shall not be under any obligations to connect or
keep connected any such Customer apparatus not
conforming, in Gotalk's reasonable opinion, to the provisions of the Act. If
requested by Gotalk the Customer shall provide Gotalk with all reasonable
information relating to any such Customer apparatus.
4.5 The Customer undertakes not to use the Service in contravention of the Act
or any other relevant regulations or licenses and to use the Service solely in
accordance with such written instructions as may be issued from time to time by
4.6 The Customer shall inform Gotalk of any change in his or her status and/or
business entity (if applicable) and will remain liable to Gotalk for all
obligations under this Agreement until this Agreement is terminated in respect
of the old status and/or entity and the Customer shall be responsible for
compliance with Condition 11.
5.1 Gotalk may from time to time advise the Customer of details of promotions.
Such promotions may make available to the Customer discounted rates and/or
preferential terms and/or special offers applicable to the Service.
5.2 Any such promotion will be available subject to such terms and conditions as
Gotalk notify to the Customer in writing.
5.3 Gotalk may offer any promotion selectively or at its complete discretion.
5.4 Gotalk may withdraw or alter any promotion if it wishes on giving
reasonable notice if appropriate.
6 PERSONAL DATA
6.1 Gotalk may use credit scoring or carry out a credit check when considering
the Customer's application and also when operating account(s) or making credit
decisions or otherwise making available the Service.
6.2 In the same circumstances, Gotalk may search the files of credit reference
agencies, who may keep a record of the search and the Customer authorises
Gotalk to do so.
6.3 Information about the Customer's debts owed to Gotalk may be disclosed to
credit reference agencies if: the Customer has fallen behind with its payments;
the amount owed is not in dispute; the Customer has not made proposals
satisfactory to Gotalk for repayment of its debt following formal demand; and
the Customer has been given at least 28 days' notice of its intention to
6.4 The Customer agrees that Gotalk may also share information about the
Customer and the conduct of its account with credit reference agencies on a
6.5 Information about people held by credit reference agencies is used by
lenders and others to help make credit decisions about those people or members
of their household, for occasional fraud prevention and for tracing
6.6 Gotalk may share information about the Customer and the conduct of the
- subsidiary and associated companies: to assist the Customer with the services
applied for; to assist in servicing the Customer's other relationships with
subsidiary and associated companies; in making credit decisions; for purposes of
fraud prevention, audit or debt collection;
- other third parties; to assist the Customer with the services applied for; to
help resolve a complaint; or for purposes of fraud prevention, audit or debt
collection; or so that services may be processed on Gotalk's behalf;
- any joint account holder where the Customer is two or more persons;
- any person to whom Gotalk transfers its rights or obligations under this
6.7 Gotalk may contact the Customer with information about the services of the
subsidiary or associated companies or carefully selected third parties, which it
feels may interest the Customer. If the Customer would prefer not to receive
such marketing promotions, he/she should write to Gotalk or telephone on 0800
6.8 Under the Data Protection Act the Customer can ask in writing for a copy of
any personal records Gotalk holds on computer about the Customer. Gotalk may
make a charge for this service.
6.9 To help improve Gotalk's service and in the interests of security it may
monitor an/or record the Customer's telephone calls.
7 PROVISION OF INFORMATION
7.1 The Customer undertakes promptly to provide Gotalk free of charge with all
information and co-operation that Gotalk may reasonably require to enable it to
proceed without interruption with the performance of its obligations under this
8.1 Nothing in this Agreement shall exclude or restrict Gotalk's liability for
death or personal injury resulting from the negligence of Gotalk or its
employees while acting in the course of their employment.
8.2 Subject to Condition 8.3 Gotalk shall be liable for damage to the property
of the Customer caused by any negligent act of omission of Gotalk or its
employees provided that such liability of Gotalk in contract, tort or
otherwise, including negligence, howsoever arising out of or in connection with
the performance of Gotalk's obligations under this Agreement shall be limited
to £20,000 for any one incident or £50,000 for any series of incidents arising
from a common cause in any twelve month period.
8.3 Gotalk shall not be liable to the Customer in contract, tort or otherwise,
including goodwill, negligence, for any corruption or destruction of data, loss
of revenue, business, goodwill, anticipated savings, profit or for any financial
loss whatsoever or for any indirect or consequential loss howsoever arising even
if advised of the possibility of such loss or damage arising.
8.4 In the event that Gotalk fails, for any reason, to provide the Service
(which for the avoidance of doubt, includes reasons beyond the control of and
unconnected with Gotalk), Gotalk shall not be liable to the Customer for any
charges incurred by the Customer should the Customer divert its traffic to
8.5 The provisions of this Condition 7 shall continue to apply notwithstanding
termination of this Agreement.
8.6 The Customer shall be liable for all charges and fees arising from use of
the Services whether authorised or unauthorised unless such unauthorised use is
wholly attributable to an act or omission of Gotalk.
9.1 Gotalk will use all reasonable endeavours to ensure that the Service is
available for use by the Customer in accordance with the standards for the time
being relating to the Service set out in Gotalk's Service literature.
10.1 Without prejudice to their rights under this Agreement Gotalk and the
Customer shall have the right to terminate this Agreement forthwith in the event
10.1.1 the other party is in default of its performance or observance of any
obligations under this Agreement and in the case of a remediable breach, fails
to remedy the breach within a reasonable time specified by the non-defaulting
party in its written notice to do so;
10.1.2 an interim order is applied for or made or a voluntary arrangement
approved, or if a petition for a bankruptcy order is presented or a bankruptcy
order is made against the other party, or if a receive or trustee in bankruptcy
is appointed of the other party's estate or a voluntary arrangement is proposed
or approved or an administration order is made, or a receiver or administrative
receiver is appointed of any of the other party's assets or undertaking or a
winding-up resolution or petition is passed or presented (otherwise than for the
purpose of reconstruction or amalgamation) or if any circumstances arise which
entitle the court of creditor to appoint a receiver administrative receiver or
administrator or to present a winding-up petition or make a winding-up order; or
10.1.3 either party serves not less than 30 days' written notice of termination
upon the other.
10.2 Without prejudice to its other rights, Gotalk shall have the right at once
to terminate this Agreement by notice in writing to the Customer in the event
10.2.1 the Customer fails to make any payment when it becomes due to Gotalk; or
10.2.2 the licence granted under Section 7 of the Act under which the Service is
provided expires or is revoked; or
10.2.3 a licence under which the Customer has the right to run its
telecommunications system and connect it to the Gotalk system is revoked,
amended or otherwise ceases to be valid and is not immediately replaced by
another valid licence.
10.3 In the event of termination by Gotalk under Conditions 10.1.1, 10.1.2,
10.1.3, 10.2.1 or 10.2.3, Gotalk shall be entitled to recover from the Customer
all costs, losses and expenses incurred by Gotalk, including but not limited to
the cost of removing provision of the Service from the Customer's premises.
10.4 On termination of this Agreement for whatever reason the Customer shall
co-operate with Gotalk, at the request of Gotalk, in the removal of any
equipment and the re-programming of the Customer's telephone system if necessary
during normal working hours of Gotalk and shall at once deliver up to Gotalk
any autodialler the property of Gotalk.
10.5 On termination of this Agreement any outstanding balance instalments due to
Gotalk in respect of payments being made for any autodialler shall become due
and payable on demand and may be added to the Customer's final account.
10.6 Gotalk shall have the right to automatically terminate a call at once if
and when the Customer's prepaid credit is exhausted.
10.7 Gotalk reserves the right to interrupt a call at any time with a message
indicating how much credit is left on the Customer's account.
11 SUSPENSION OF SERVICE
11.1 Gotalk may at its sole discretion elect to suspend at once the
availability of the Service until further notice without liability to the
Customer on notifying the Customer either orally (confirming the same in
writing) or in writing in the event that:
11.1.1 the Customer is in breach of any term of this Agreement
11.1.2 the Customer prevents or delays prearranged maintenance from being
11.1.3 Gotalk is obliged to comply with an order instruction or request of
government, an emergency service organisation or other competent authority; or
11.1.4 the Customer is suspected, in Gotalk's reasonable opinion, of
involvement with fraud or attempted fraud or acts which are of a defamatory,
offensive, blasphemous, abusive, obscene or menacing character in connection
with use of the Service.
11.2 Notwithstanding the right of suspension under this Condition 11, Gotalk
shall still have the right, under the terms herein, to terminate this Agreement.
11.3 The Customer shall pay to Gotalk all reasonable costs and expenses
incurred by Gotalk as a result of suspension of the Service which is a
consequence of any breach, fault or omission of the Customer hereunder and any
costs and expenses incurred in connection with reconnection of the Service as
may be applicable.
12.1 This Agreement may not be assigned in whole, or in part, by the Customer
without the prior written consent of Gotalk such consent not to be unreasonably
12.2 Gotalk may assign this Agreement to a direct or indirect subsidiary,
parent or group company without consent.
13.1 The ownership rights in any equipment supplied under this Agreement or
relating to the Service(s) including all patents, trademarks, copyright and
rights of like nature in any equipment supplied under this Agreement relating to
the Service shall remain with Gotalk.
14 FORCE MAJEURE
14.1 Neither party shall be liable to the other for any loss or damage which may
be suffered by the other party due to any cause beyond the first party's
reasonable control including but not limited to any act of God, inclement
weather, failure or shortage of power supplies, flood, drought, lightening, or
fire, strike, lock-out, trade dispute or labour disturbance, act or omission of
government, highway authorities, other telecommunications operators or
administrators or competent authorities, war, military operation, or riot,
difficulty, delay or failure in manufacture production or supply by third
parties of equipment or services.
15 NO WAIVER
15.1 Failure or delay by either party to exercise or enforce any right conferred
by this Agreement shall not be deemed to be a waiver of any such right nor
operate so as to bar the exercise or enforcement thereof, or of any other right
on any later occasion.
16.1 Any notice, invoice or other document which may be given by either party
under this Agreement shall be deemed to have been given if left at or sent by
post or facsimile transmission (confirming the same by post) to an address
notified by the other party in writing as an address to which notices, invoices
or other documents may be sent.
16.2 Gotalk's address for service of any notice hereunder shall be such address
as appears below.
17 GOVERNING LAW
17.1 This Agreement shall be governed by and construed in accordance with
English law and the parties hereby submit to the jurisdiction of the English
Gotalk Customer Services
1st Floor, Bishopsgate Court
4-12 Norton Folgate