Terms and Conditions
1. Basis of Contract
1.1 The Service Agreement (the " Agreement ") constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
1.2 The Agreement shall only be deemed to be accepted when Seismic Wave Support issues written acceptance of the Agreement at which point and on which date the contract (the " Contract ") shall come into existence (the " Commencement Date ").
1.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Seismic Wave Support which is not set out in the Contract.
1.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2. Services
2.1. From the Commencement Date, Seismic Wave Support agrees to make commercially reasonable efforts to provide the services selected by the Customer (the " Services ") on the Agreement; the Customer agrees to use those Services in accordance with these terms and conditions.
2.2 Seismic Wave Support shall have the right to make any changes to the Services that are necessary to comply with any applicable law or safety requirement or which do not materially affect the nature or quality of the Services, and Seismic Wave Support shall notify the Customer in any such event.
2.3. Seismic Wave Support warrants to the Customer that the Services will be provided using reasonable care and skill.
3. Customer Obligations
3.1 The Customer shall:
3.1.1 co-operate with Seismic Wave Support in all matters relating to the Services;
3.1.2 provide Seismic Wave Support with such information and materials as Seismic Wave Support may reasonably be required to supply the Services and ensure that such information is accurate in all material respects;
3.1.3 provide Seismic Wave Support with the e-mail, pager, fax, or other telecommunications service that will be used to deliver its messages to the Customer, except the voice mail service that Seismic Wave Support will provide upon the Customer's request at an additional charge; and
3.2 If Seismic Wave Support's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (" Customer Default "):
3.2.1 Seismic Wave Support shall without limiting its other rights or remedies have the right to suspend the performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Seismic Wave Support's performance of any of its Obligations;
3.2.2 Seismic Wave Support shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Seismic Wave Support's failure or delay to perform any of its obligations as set out in this clause 3.2; and
3.2.3 The customer shall reimburse Seismic Wave Support on written demand for any costs or losses sustained or incurred by Seismic Wave Support arising directly or indirectly from the Customer Default.
4. Billing and Payment
The charges for the Services are set out.
4.1 Work interactions on the Customer's account are measured on a monthly bases and will be covered in individual contracts. All workers are dedicated to customers account and are billed at a set hourly or monthly rate depending on the package purchased.
4.2 Seismic Wave Support reserves the right to increase its charges, provided that such charges cannot be increased more than once in any 6-month period. Seismic Wave Support will give the Customer written notice of any such increase [1] a month before the proposed date of the increase. If such an increase is not acceptable to the Customer, it shall notify Seismic Wave Support in writing within [4] weeks of the date of Seismic Wave Support's notice and Seismic Wave Support shall have the right without limiting its other rights or remedies to terminate the Contract by giving 2 weeks' written notice to the Customer.
4.3 Monthly recurring charges shall be invoiced monthly, in arrears, and usage charges in excess of the monthly allowance are invoiced during the month on a periodic basis.
4.4 The Customer is responsible for payment of all charges for any Services performed on its behalf by Seismic Wave Support.4.5 The Customer shall pay each invoice submitted by Seismic Wave Support within [3] days of the invoice date and in full and in cleared funds to a bank account nominated in writing by Seismic Wave Support. Time for payment shall be of the essence of the Contract.
4.6 The Customer shall send Seismic Wave Support a written notice of any dispute of any invoice issued by Seismic Wave Support within twenty-one (21) days after the invoice date, or such invoice shall be deemed correct and payable in full.
4.7 The Customer will provide detailed information regarding any dispute and agrees to cooperate with Seismic Wave Support to investigate disputed matters.
4.8 If Seismic Wave Support initiates legal proceedings to collect any amount due under the Contract and Seismic Wave Support substantially prevails, then the customer will pay Seismic Wave Support's costs and reasonable legal fees in such proceedings and any appeals.
4.9 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (" VAT "). Where any taxable supply for VAT purposes is made under the Contract by Seismic Wave Support to the Customer, the Customer shall, on receipt of a valid VAT invoice from Seismic Wave Support, pay to Seismic Wave Support such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
4.10 If the Customer fails to make any payment due to Seismic Wave Support under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 1.5% percent per annum above Barclay's Bank's base rate from time to time. Such interest shall accrue daily from the due date until the actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
4.11 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Seismic Wave Support may, at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Seismic Wave Support to the Customer.
4.12 The Customer understands that its responsibility for payment for all charges survives termination of this Agreement.
5. Intellectual Property
5.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Seismic Wave Support.
5.2 The Customer acknowledges that, in respect of any third-party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional on Seismic Wave Support obtaining a written license from the relevant licensor on such terms as will entitle Seismic Wave Support to license such rights to the Customer.
5.3 All telephone numbers provided or arranged by Seismic Wave Support remain the property of Seismic Wave Support upon any termination of the Services.
5.4 The Services are provided for use only by the Customer, its employees, and authorized agents.
6. Confidentiality
6.1 A party (the " receiving party ") shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (" disclosing party "), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products, and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents, and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract and shall ensure that such employees, agents, and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract.
6.2 The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority, or by a court of competent jurisdiction. This clause six shall survive termination of the Contract.
7. Limited Warranties, Remedies, and Damages: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 Nothing in these Conditions shall limit or exclude Seismic Wave Support's liability for:
7.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents, or Subcontractors;
7.1.2 fraud or fraudulent misrepresentation; or
7.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.2 Subject to clause 7.1:
7.2.1 Seismic Wave Support shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
7.3 Seismic Wave Support’s entire liability for any claim arising out of or relating to this Contract shall be limited to the amounts the Customer paid to Seismic Wave Support for such service during the twelve (12) months preceding such failure to provide the service. The parties acknowledge that these limitations on potential liabilities were an essential element in setting consideration under the Contract.
7.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.5 Seismic Wave Support does not give any warranties as to any Services provided under the Contract and does not warrant that it has sufficient resources to handle unexpected increases for transmission errors, corruption of data, or the security of information carried over telecommunication services;
7.6 Subject to the foregoing limitations, if Seismic Wave Support fails to provide the Services, the Customer sole remedy will be, at Seismic Wave Support’s sole discretion, either:
7.6.1 the correction of the failure to provide the services, or
7.6.2 a refund of the monthly recurring charges paid to Seismic Wave Support for such services during the period of time that the services were affected.
7.7 This clause 7 shall survive termination of the Contract.
8. Authorization and Credit Check
8.1 All service requests are subject to the approval of Seismic Wave Support and the Customer authorizes Seismic Wave Support to investigate its credit and grants Seismic Wave Support permission to disclose to any other interested parties Seismic Wave Support’s payment and/or credit experience with the Customer's accounts.
8.2 Seismic Wave Support reserves the right to request a letter of credit and/or a security deposit to ensure prompt payment.
8.3 The Customer understands that its responsibility for payment for all charges survives termination of this Agreement.
9. Communication
9.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
9.2 A notice or other communication shall be deemed to have been received if delivered personally when left at the address referred to in the terms of use; if sent by prepaid first class post or other next working day delivery service at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
10. Termination
10.1 Seismic Wave Support is confident in the service provided and does not believe in holding you, the 'other party' to a long-term contract. If for any reason you, the 'other party' are dissatisfied, then cancellation can be processed at any time with a written 30 day notice.
10.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
10.2.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing Apply;
10.2.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
10.2.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other thanfor the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.2.5 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 Days;
10.2.6 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
10.2.7 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
10.2.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
10.2.9 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(b) to clause 9.2(i) (inclusive);
10.2.10 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
10.2.11 the other party's financial position deteriorates to such an extent that in Seismic Wave Support's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.3 Without limiting its other rights or remedies, Seismic Wave Support may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after being notified in writing to do so.
10.4 Without limiting its other rights or remedies, Seismic Wave Support may suspend provision of the Services under the Contract or any other contract between the Customer and Seismic Wave Support if the Customer becomes subject to any of the events listed in clause 10.2.2 to clause 10.2.11, or Seismic Wave Support reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10.5 On termination of the Contract for any reason:
10.5.1 the Customer shall immediately pay to Seismic Wave Support all of Seismic Wave Support's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Seismic Wave Support shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.5.2 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination expiry; and
10.5.3 clauses which expressly or by implication survive termination shall continue in full force and Effect.
11. Force Majeure
11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Seismic Wave Support including but not limited to strikes, lock- outs or other industrial disputes (whether involving the workforce of Seismic Wave Support or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
11.2 Seismic Wave Support shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents Seismic Wave Support from providing any of the Services for more than 4 weeks, Seismic Wave Support shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
12. Assignment
12.1 Seismic Wave Support may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
12.2 The Customer shall not, without the prior written consent of Seismic Wave Support, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
13. Miscellaneous
13.1 This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
13.2 Each party irrevocably agrees that the courts of Delaware shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
13.3 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. The provisions of this Agreement will be deemed severable, and the invalidity or unenforceability of any provision will not affect the validity or enforceability of any other provision.
13.4 The terms and conditions of this Agreement may be amended or waived only by a written instrument signed by the parties. No failure or delay by a party in exercising any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or Remedy.
13.5 Clauses 4, 5, 6, 7, 9 and 10 shall survive termination of the Contract.
13.6 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
13.7 A person who is not a party to the Agreement shall not have any rights to enforce its terms.
13.8 Except as set out in these Conditions, no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier
13.9 Full Creative, trading as Seismic Wave Support
Please note that by signing and providing contact information you agree to allow permission to communicate with you by telephone, fax, e-mail and other methods of communication.