Member Terms and Conditions
1. Definitions and Interpretation
- 1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
||means any person firm or company requesting the Services.
||means Interactive Network Limiteda company registered in England and Wales under Company Number 07616055 whose registered office is at Greengate Business Centre, 2 Greengate Street, Oldham, England, United Kingdom, OL4 1FN.
||means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).
||means the Customer Charter appearing in the Terms and Conditions on the Site.
||means the estimate provided by the Member to any Client requesting the same through the Site and which the Company will list in its response to that Client.
||means any and all sums due under this Agreement from the Client to the Company.
||means the area or region allocated to the Member by the Company.
||means a technician who wishes to supply services to clients of the Company.
||means the services of repairing mobile phones.
||means the subscription payable by the Member to the Company from time to time as advertised on the Site.
||means the period for which the Subscription has been paid and if no subscription has been paid then the period of 3 months from the date upon which the Company accepts the Member as a member.
- 1.2 Unless the context otherwise requires, each reference in this Agreement to:
- 1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
- 1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
- 1.2.3 “this Agreement” is a reference to these terms and conditions and each of the Schedules as amended or supplemented at the relevant time;
- 1.2.4 a Schedule is a schedule to this Agreement; and
- 1.2.5 a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
- 1.2.6 a "Party" or the "Parties" refer to the parties to this Agreement.
- 1.3 The headings used in this Agreement are for convenience only and will have no effect upon the interpretation of this Agreement.
- 1.4 Words imparting the singular number will include the plural and vice versa.
- 1.5 References to any gender will include the other gender.
- 1.6 References to persons will include corporations.
- 1.7 The words and phrases in the left hand column of the table at the head of this Agreement will have the meanings ascribed to them in the right hand column.
2. Agreement & the Company’s obligations
- 2.1 An Agreement will come into force between the Company and the Member on the Company’s acceptance of the Member as a member and until such acceptance has been communicated by the Company to the Member no agreement will exist.
- 2.2 With effect from the date of the acceptance by the Company it will, throughout the Term of this Agreement, provide access to the Site to the Member to enable it to advertise the Services to Clients using its comparison and listing service.
- 2.3 The Company will use its best endeavours to ensure that the Member is shown in all listings for the Services within the geographical areas for which the Member has subscribed and which comply with the requirements of the Company specified below.
- 2.4 The Company will be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.
- 2.5 The way in which the Company structures and manages the Site is entirely at the discretion of the Company.
- 2.6 For the avoidance of all doubt the Company is not and has not been appointed as the agent of the Member in relation to the Services or of any other products or services of the Member.
3. Member’s Obligations
- 3.1 The Member will provide estimates to all Clients requesting the Services containing the following information:
- 3.1.1 total cost of providing the Services;
- 3.1.2 the approximate timescale within which the Services will be provided; and
- 3.1.3 any additional requirements of the Member to enable it to deliver the Services.
- 3.2 The Member will ensure that it has sufficient stocks and/or resources available to it so that it can honour all estimates issued by the Member pursuant to this Agreement at the costs and within the timescale specified in the estimate.
- 3.3 That all estimates will be complete and accurate and will be honoured by the Member at the price and within the timescale specified therein.
- 3.4 Any delay in the provision of the Services will be communicated as soon as is reasonably possible to the Client and to the Company and if no alternative date can be agreed with the Client the Member will withdraw its estimate and allow the Client to seek the services of another Member.
- 3.5 The Member will, at all times, comply with the Client Charter.
- 3.6 The Member agrees to comply with all and any statutory or other rights accruing to any Client under any legislation of any nature and to provide the Services and any parts required to fulfil them and will provide a full and complete indemnity to the Company in respect of any breach of this provision.
- 3.7 If the Member suspects that any fraudulent or other irregular activity is being conducted in association with the use of the Services then it will, as soon as possible, report such activity to the Company and (at its own expense) will co-operate with the Company to bring any such activity to an end.
- 3.8 The Member will pay the Subscription to the Company in advance failing which the Company may immediately cease to offer access to the Site to the Member.
4. Client Disputes
- 4.1 The Company will notify the Member if it receives a complaint concerning the Member or the Services and the Company will on receipt of such notification:
- 4.1.1 immediately acknowledge receipt of the complaint both to the Company and direct to the Client;
- 4.1.2 within 72 hours of the receipt of the complaint advise both the Company and the Client (in writing) of the investigations it has carried out and:
- 18.104.22.168 if it accepts the complaint what steps it will take to resolve the complaint and then carry out such steps (if agreed with the Client) as soon as is practicably possible thereafter and in any event within 7 days from the acceptance of the complaint; or
- 22.214.171.124 if it rejects the complaint advice why it has rejected it.
- 4.2 If following the steps taken pursuant to clause 4.1.2 the Member cannot resolve the dispute with the Client, to inform both the Company and the Client that that is the case no later than 7 days after the notification referred to in clause 4.1.
- 4.3 In the event that the Client takes legal action against the Member, to inform the Company of that fact and of the outcome of such action as soon as such outcome has been arrived at.
- 4.4 At all times in its dealings with all Clients, the Member will act in a professional and courteous manner and will respond to all correspondence as quickly as is practicably possible.
- 4.4 For the purposes only of this clause 4, time will be of the essence in relation to all matters where a time limit has been prescribed.
5. Liability, Indemnity and Insurance
- 5.1 The Member will ensure that it has in place at all times suitable and valid insurance that will include public, professional and product liability insurance.
- 5.2 In the event that the Member fails to perform the Services with reasonable care and skill it will carry out any and all necessary remedial action at no additional cost to the Client.
- 5.3 The Company’s total liability for any loss or damage caused as a result of its negligence or breach of this Agreement will be limited to the Subscription.
- 5.4 The Company will not be liable for any loss or damage suffered by the Member that results from the Member’s failure to follow any instructions given by the Company.
- 5.5 Nothing in this Agreement will limit or exclude the Company’s liability for death or personal injury.
- 5.6 The Member will indemnify the Company against any costs, liability, damages, loss, claims or proceedings arising from the carrying out of the Services and injury to any person or persons arising out of the Member’s breach of any term of this Agreement.
- 5.7 Neither Party will be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
- The Member guarantees that the Services it provides will be free from any and all defects and that if any defects arise the Member will immediately and without cost to the Company or the Client rectify any and all such defects.
- 7.1 Each Party undertakes that, except as provided by sub-Clause 7.2 or as authorised in writing by the other Party, it will, at all times during the continuance of this Agreement and after its termination:
- 7.1.1 keep confidential all Confidential Information;
- 7.1.2 not disclose any Confidential Information to any other party;
- 7.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
- 7.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
- 7.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 7.1.1 to 7.1.4 above.
- 7.2 Either Party may:
- 7.2.1 disclose any Confidential Information to:
- 126.96.36.199 any sub-contractor or supplier of that Party;
- 188.8.131.52 any governmental or other authority or regulatory body; or
- 184.108.40.206 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies; to such extent only as is necessary for the purposes contemplated by this Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that Party will first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause
- 220.127.116.11 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 7, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
- 7.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
- 7.3 The provisions of this Clause 7 will continue in force in accordance with its terms, notwithstanding the termination of this Agreement for any reason.
8. Force Majeure
- No Party to this Agreement will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet Company failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
9. Term and Termination
- 9.1 This Agreement will come into force on the date on which the Company indicate that the Member has been accepted as a member and will continue for the Term of subject to the provisions of this Clause 9.
- 9.2 The Company will have the right, exercisable by giving not less than 5 days written notice to the Member at any time prior to the expiry of the Term to terminate this Agreement without notice to the Member, subject to the Company reimbursing the unused proportion of the Subscription to the Member but otherwise without any other compensation whatever.
- 9.3 Either Party may immediately terminate this Agreement by giving written notice to the other Party if:
- 9.3.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 28 days of the due date for payment;
- 9.3.2 the other Party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 20 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
- 9.3.2 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
- 9.3.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
- 9.3.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);
- 9.3.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
- 9.3.7 that other Party ceases, or threatens to cease, to carry on business; or
- 9.3.8 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 9, “control” and “connected persons” will have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
- 9.4 For the purposes of sub-Clause 9.3.2, a breach will be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
- 9.5 The rights to terminate this Agreement given by this Clause 9 will not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
10. Effects of Termination
- Upon the termination of this Agreement for any reason:
- 10.1 any sum owing by either Party to the other under any of the provisions of this Agreement will become immediately due and payable;
- 10.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this Agreement will remain in full force and effect;
- 10.3 termination will not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination;
- 10.4 subject as provided in this Clause 10 and except in respect of any accrued rights neither Party will be under any further obligation to the other; and
- 10.5 each Party will (except to the extent referred to in Clause 7) immediately cease to use, either directly or indirectly, any Confidential Information, and will immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
11. No Waiver
No failure or delay by either Party in exercising any of its rights under this Agreement will be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of the same or any other provision.
- 12. Set-Off
- The Company may set-off any sums in any manner from payments due or sums received in respect of any claim under this Agreement or any other agreement between it and the Member at any time.
13. Assignment and Sub-Contracting
- 13.1 Subject to sub-Clause 13.2 this Agreement is personal to the Parties. Neither Party may assign, mortgage, charge or sub-licence or otherwise delegate any of its rights hereunder, or sub-contractor otherwise delegate any of its obligations hereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
- 13.2 The Company will be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor will, for the purposes of this Agreement, be deemed to be an act or omission of the Company.
- The Parties agree that all times and dates referred to in this Agreement (save those contained in clause 4 hereof) will not be of the essence of this Agreement.
15. Relationship of the Parties
Nothing in this Agreement will constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
16. Third Party Rights
- 16.1 No part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 will not apply to this Agreement other than the rights purchased by any Client when purchasing the Services.
- 16.2 Subject to this Clause 16 this Agreement will continue and be binding on the transferee, successors and assigns of either Party as required.
- 17.1 All notices under this Agreement will be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
- 17.2 Notices will be deemed to have been duly given:
- 17.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
- 17.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
- 17.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
- 17.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices will be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
- 18.1 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
- 18.2 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
- 18.3 This Agreement incorporates the Terms and Conditions which appear on the Site but in the case of a conflict between those terms and conditions and this Agreement, this Agreement will prevail.
In the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) will be deemed severed from the remainder of this Agreement. The remainder of this Agreement will be valid and enforceable.
- 19. Law and Jurisdiction
- 19.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) will be governed by, and construed in accordance with, the laws of England and Wales.
- 19.2 Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) will fall within the jurisdiction of the courts of England and Wales.
All our Members have agreed to abide by the following Customer Charter.
If you have a problem, please tell us using our Customer Complaint Form.
Our suppliers agree to:
- Deal with customer complaints promptly and fairly.
- Provide an Estimate only on services that they are reasonably able to provide within a 48 hour period, unless an alternative time period is agreed in advance with the customer.
- Comply with all relevant legislation in relation to the buying, supplying, removing and installation of goods.
- Use any personal data in relation to you purely for the purposes for which that data was supplied and to inform you of any new developments from PhoneMend or services which we feel may be of interest to you.