Mediahawk Service Standard Terms & Conditions of Use

1.0 DEFINITIONS

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

“Agreement” means the Agreement between Mediahawk and the Customer in respect of the Services incorporating these terms and conditions.

“Call Charge” means the applicable telephone charges for inbound and outbound services as shown on the Quote or Order Confirmation or referred to on the Quote or Order Confirmation and are charged based on UTC/ BST time zone.

“Call Recording” means a computer based recording of a call stored on the Mediahawk platform.

“Charges” means the charges payable in respect of the Services (as amended from time to time in accordance with clause 5 below) as set out in the Quote or Order Confirmation or as otherwise notified to the Customer before they are incurred.

“Classic” means a static number that is allocated to a client on a fixed basis. This product provides the Customer for the duration of this contract use of a Telephone Number for tracking purposes.

“CLI” means Caller Line Identity.

“Complete” Provides both Visitor Call Tracking and Classic numbers in a combined contract.

“Credit Limit” means the amount of Call Charges allowed by a Customer in each month. This will be agreed and can be varied by mutual consent.

“Customer” means the party named as such on the Quote or Order Confirmation to whom Mediahawk agrees to provide Services and by whom Charges are payable.

“Intellectual Property Rights” means any copyright, patents, design patents, registered designs, design rights, trademarks, service marks, trade secrets, know how, trade or business names, domain names and any other rights of a similar nature together with all registrations, applications to register and rights to apply for registration of any of the above rights and any licenses of or in respect of such rights. “Interim Invoice” means the provision of an invoice by a Customer should they exceed their Credit Limit in any month.

“Mediahawk Client Services” means the Mediahawk employees responsible for liaising with Customers and can be contacted by emailing clientservices@mediahawk.co.uk or by telephoning +44(0)333 222 8333 between the hours of 08:30 and 17:00 Monday to Friday GMT / BST (excluding UK public holidays).

“Mediahawk” means Media Hawk Limited, a limited company incorporated in England and Wales (registration number 4432034) having its registered office at 28–31 The Stables, Wrest Park, Silsoe, Bedfordshire, MK45 4HR.

“Minimum Period” means the minimum time with which this Agreement shall apply unless otherwise mutually agreed.  The Minimum Period for the Services is 12 months unless otherwise specified on the Quote or Order Confirmation

“Minimum Call charge” means the minimum Call Charge that will be applied for a call duration as set out in the Quote or Order Confirmation, section 5.14 below or as otherwise notified to the Customer before they are incurred.

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

“Order” means a Customer’s order for Services made on a Quote or Order Agreement or otherwise notified to Mediahawk by the Customer.

“Order Confirmation” lists the Services, Charges, Call Charges and frequency of those charges to be paid for by the Customer and provided by Mediahawk.

“Services” means connection to the Telecommunications Network, management reports, provision of Telephone Numbers, and the provision of other telecommunications services (such as network call recording) as set out in one or more Quotes or Order Agreements for the Customer or otherwise agreed by the parties from time to time.

“Subscription” means the proportion of Charges for accessing Mediahawk’s reporting platform and setup of Visitor Call Tracking or Complete.

“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 non-geographic telephone number(s) or geographic telephone number(s) which is allocated to a Customer and which is forwarded to a telephone number agreed between the Customer and Mediahawk or is forwarded to a number decided by the Customer at the point of dialling.

“Visitor Call Tracking” means a product developed by Mediahawk which automatically allocates telephone numbers for a limited period of time to individual website visitors. This product provides the Customer with temporary not permanent use of a Telephone Number.

“Terms and Conditions Agreement” means the online terms and conditions agreement acceptance form.

“Quote” lists the Services, Charges, Call Charges and frequency of those charges to be paid for by the Customer and provided by Mediahawk.

2.0 PROVISION OF SERVICES

2.1 Mediahawk shall provide Services to the Customer on the terms and conditions of this Agreement.

2.2 This Agreement will continue unless and until it is terminated by either party giving the other the required Minimum Notice Period as outlined in Clause 9 below or as in accordance with clause 8 below.

2.3 The Services are supplied subject to all limitations of the Telecommunications Network including the risk of imposed prefix or number changes. Mediahawk shall use all reasonable endeavours to maintain the Services 24 hours in every day on every day of the year but Mediahawk shall not be liable for any failure to maintain the Services whether this arises from a technical or other failure of Mediahawk, the Telecommunications Network or otherwise. Mediahawk does not warrant that the Services will be fault free or free of interruptions. In the event of any fault, breakdown or interruption in the Services the Customer should notify Mediahawk.

2.4 Mediahawk shall be entitled to:

2.4.1 change the technical specification of the Services (provided that such changes do not materially affect the performance of the Services) where necessary for operational reasons, statutory or regulatory requirements; and

2.4.2 suspend the Services for operational reasons or in case of emergency; and

2.4.3 give the Customer instructions which Mediahawk believes to be necessary for health and safety reasons or for maintaining the quality of the Services.

2.5 Mediahawk is unable to guarantee that all overseas systems will be able to connect to the Telephone Number or that telephone keypads will use the same alphanumeric combinations as are currently used in the UK.

2.6 Mediahawk is unable to guarantee that the Mediahawk system will be able to fully report all details on International numbers.

2.7 When Mediahawk receive an incoming call, we perform basic normalisation on the CLI to the E.164 formatting, otherwise, we will pass the CLI exactly as we receive it.

2.8 Each Order will with these terms comprise a separate contract between the parties unless the Order specifies that it is an amendment to an existing contract.

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

2.10 Mediahawk shall setup the account within 24 hours and commission the Services within 5 working days upon acceptance of the Terms and Conditions Agreement.

2.11 Mediahawk shall provide the Customer with call data records for 120 days on a rolling basis unless otherwise agreed. Mediahawk reserves the right to archive data over 120 days of age and charge for access to the archive.

2.12 Mediahawk shall provide the Customer with access to call recording for 30 days on a rolling basis unless otherwise agreed. Mediahawk reserves the right to archive recordings over 30 days of age but to a maximum of 60 days and charge for access to the archive.

2.13 a Customer which has purchased Visitor Call Tracking is subject to a fair use policy. Telephone numbers which are automatically allocated to a Customer will be removed without notice where in the opinion of Mediahawk they do not generate enough call traffic to justify their allocation.

3. MEDIAHAWK’S OBLIGATIONS

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

3.2 Mediahawk will provide access to its web site for the provision of call data during the hours of 8.30 am and 7.30 pm GMT / BST (excluding UK public holidays during business days. Mediahawk will endeavour to have all planned maintenance outside of these hours but reserves the right in unforeseen circumstances to maintain the site during office hours in which case Mediahawk shall not be liable for non-provision of the call data reports.

3.3 Mediahawk is registered under the Data Protection Act 1998 and agrees to fulfil its obligations imposed by the Data Protection Act 1998.

4.0 CUSTOMER RESPONSIBILITIES

4.1 The Customer shall at all times:

4.1.1 comply with any reasonable directions or instructions (including requests for assistance or information) issued from time to time by Mediahawk in connection with the Services;

4.1.2 not be entitled by reason of any set-off, counter claim, abatement or analogous deduction to withhold payment of any amount due to Mediahawk without the written Agreement of Mediahawk;

4.1.3. acknowledge that Mediahawk will cooperate fully with the Police and any other relevant authorities (including but not limited to HM Revenue & Customs and the Trading Standards Office) in connection with any misuse or suspected misuse of the Services and the Customer consents to Mediahawk co-operating with any other telecommunications operators in connection with any fraudulent activity related to or connected with the Services and agrees that Mediahawk shall be entitled to divulge the name and address and account information relating to the Customer to such third parties;

4.1.4 indemnify and hold Mediahawk harmless against all liabilities, claims, damages, losses, costs and proceedings howsoever arising from any improper use of the Services;

4.1.5 take appropriate security measures to safeguard the use of or access to the Service by any unauthorised person. The Customer is responsible for any person who has access to the Service and must ensure that they comply with this contract;

4.1.6 comply with all applicable UK Legislation, including the Data Protection Act 1998 and any OFCOM or FSA regulations and PCI-DSS compliance relating to the use of the Services or the recording of telephone calls. The Customer may contact Mediahawk for information regarding features which may support PCI-DSS compliance.

4.1.7 comply with any applicable non UK Legislation, including Data Protection Acts, in country Telecommunication or financial authorities regulations and recording of telephone calls legalities relating to the use of the services.

4.2 Whilst Mediahawk carry out testing of numbers We cannot test all connections, it is essential that the Customer test any numbers that have been applied to your account before go live, Mediahawk cannot be held responsible if incorrect numbers are placed on advertising.

4.3 the customer agrees that Mediahawk cannot guarantee a CLI will be presented to the called party and that any CLI passed to Mediahawk may not be the originating CLI or the CLI may have been altered.

5.0 CHARGES AND PAYMENT

5.1 All services are invoiced and payable in GB pounds.

5.2 Subscription is payable on completion of the Terms and Conditions Agreement. The Subscription charges is payable as defined in the Quote or Order Confirmation and is non-refundable. All charges applicable to the subscription can be found on the Quote or Order Confirmation.

5.3 Charges and Call Charges are payable as defined in the Quote or Order Confirmation. If Charges are ascertainable in advance they may be invoiced in advance. In respect of unascertainable future charges Mediahawk may require a reasonable security deposit.

5.4 All Charges shall (save in the case of demonstrable error) be calculated by reference to data recorded or logged by Mediahawk.

5.5 If, at any time, Call Charges and other Charges in any one month exceed the Credit Limit set out on the front page of the Quote or Order Confirmation or any revision thereof, Mediahawk shall be entitled to issue the Customer with an Interim Invoice and request an immediate payment on account from the Customer and the Customer shall comply with any such request.  Any extension of credit allowed to the Customer may be changed or withdrawn at any time.

5.6 Certain Services have additional costs which are outside the control of Mediahawk. Where any such charges are increased to Mediahawk it shall forthwith advise the Customer and be entitled to increase its own charges for the same Services by the same proportion.

5.7 Invoices are payable within 30 days of their invoice date and will be drawn against an approved direct debit mandate or other agreed payment method.

5.8 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 judgment.

5.9 All amounts payable hereunder are exclusive of value added tax or any other applicable taxes which may from time to time be levied and such value added tax and any other such applicable taxes shall be itemised separately on all invoices and bills and payable by the Customer in addition to, and at the same time as, any Charges.

5.10 Mediahawk shall in respect of each Service be entitled to review and, if it so desires, vary from time to time the Charges and to introduce new Charges. Subject to clause 5.5 the varied or new charges shall take effect 2 weeks after written notice has been sent to the Customer detailing such variations or new Charges.

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

5.11.1 change the target destination number to a complex routing or alternative chargeable routing

5.11.2 change Operator for any Telephone Number;

5.11.3 change Operator upon termination of this Agreement in respect of any Telephone Number;

5.11.4 transfer any Telephone Number to another Operator;

5.11.5 provide consultancy and other technical changes made on behalf of the Customer.

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

5.13 Mediahawk will invoice the Customer with the Charges in accordance with the agreed invoice frequency.  If the invoice frequency is annual the Customer will be invoiced with the Charges on the first and subsequent anniversaries of the Agreement without further notice.

5.14 The Customer is completely responsible for payment of all Call Charges incurred in the use of the Services regardless of whether the Services have been misused in anyway, including but not limited to the misuse or fraudulent use of Telephone Numbers.

5.15 Minimum Call Charges apply using the following method: Client Agreement commencement before 1st December 2016 minimum one minute charge per call; Client Agreement commencement on or after 1st December 2016 all part minutes will be rounded up to a full minute.

6.0 MEDIAHAWK’S LIABILITY

6.1 Mediahawk does not exclude or restrict any liability to the Customer for death or personal injury attributable to its own negligence or that of its employees or agents.

6.2 Except as stated expressly otherwise in this Agreement, in relation to the provision of Services, Mediahawk 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 undertaking, 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.

6.3 Mediahawk 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.

6.4 Notwithstanding the provisions of clause 6.3 and subject to clause 6.1, Mediahawk’s liability to the Customer for breach of contract shall be limited to £5,000. Any other liability shall be limited to the amount of relevant insurance cover carried by Mediahawk.

7.0 SUSPENSION OF SERVICES

7.1 Mediahawk may suspend all or part of the Services or any of them for so long as reasonably required or disconnect the Telephone Number at any time without notice if:

7.1.1 the Customer is in material breach of this Agreement or any other Agreement between the parties and in particular in breach of clause 4 or 5;

7.1.2 the Customer acts in such a way or permits anything to be done which, in the reasonable opinion of Mediahawk, may impair or jeopardise the operation of the Services or any part of the Telecommunications Network;

7.1.3 required to do so directly or indirectly by law or the Operator;

7.1.4 the Customer does not pay for the all the Services, Subscriptions, Call Charges due under this Agreement.

7.2 The Customer shall remain liable for all Charges during any period of suspension attributable to the actions or omissions of the Customer.

8.0 TERMINATION OF AGREEMENT

8.1 Mediahawk may terminate this Agreement immediately by notice in writing to the Customer if:

8.1.1 the Customer is in breach of any of the terms of this Agreement or any other Agreement between the parties and does not remedy the breach within 7 days of the date of written notice from Mediahawk specifying the breach and requiring it to be remedied; or

8.1.2 any licence, permission, Agreement or authorisation granted to the Operator or to Mediahawk necessary for the provision of the Services is suspended, revoked or terminated.

9.0 NOTICE PERIODS

9.1 Visitor Call Tracking: this Agreement will continue unless and until it is terminated by either party giving the other 30 days’ notice.

9.2 Classic: this Agreement will continue unless and until it is terminated by either party giving the other 120 days’ notice subject to the Minimum Period.

9.3 Complete: this Agreement will continue unless and until it is terminated by either party giving the other 30 days’ notice.

10.0 INTELLECTUAL PROPERTY

10.1 All Intellectual Property Rights (IPRs) currently owned by Mediahawk or of its licensor will at all times remain the property of Mediahawk or of its licensor (as appropriate). To the extent that it is so entitled, Mediahawk grants the Customer a non-exclusive non-transferable licence to use the IPRs for the purpose of using the Services and for no other purpose.  The Customer will not reproduce, modify, adapt, translate, reverse engineer, decompile or disassemble the software or create any derivative work based thereon or merge or include software with or in any other software.

10.2 Copyright in all documents, drawings, designs and information (including if applicable any access codes supplied to the Customer in connection with this Agreement) shall remain vested in Mediahawk or the copyright owner.  Such documents, drawings, designs and information are confidential and will not be copied, disclosed or used (except for the purpose for which they were supplied) without Mediahawk’s express prior written consent.

10.3 Mediahawk shall have the exclusive right to commence, defend, conduct and settle all proceedings involving an infringement or alleged infringement of its IPRs or relating to the validity thereof.  The Customer shall, at Mediahawk’s sole expense, give all reasonable assistance and such documentation as Mediahawk may (without limitation) require in connection therewith, and shall, without limitation to the generality of the foregoing, agree to be joined as plaintiff or defendant in any proceedings, provided always that Mediahawk shall have the sole right to commence, conduct settle or compromise any such proceedings and the sole right to the benefit of any settlement, compromise or award of a court, tribunal or the like.

11. FORCE MAJEURE

11.1 Other than in respect of the Customer’s obligations to pay the Charges or any other payments due in accordance with this Agreement, neither party shall be liable to the other for any breach of this Agreement or failure to perform any obligation while such breach or failure was the result of any act of God, insurrection or civil disorder, war or military operations, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, national or local emergency, acts or omissions of government, highway authority or other government or regulatory authority, compliance with any statutory obligation, industrial disputes of any kind, the acts or omissions of Network Operators or any other cause beyond that party’s reasonable control.

12.0 COMPLAINTS

12.1 Formal complaints relating to the Service can be made to Mediahawk Client Services

12.2 Mediahawk will take full details of the complaint including Customer contact details and preferred choice of communication. Mediahawk will investigate with a view to resolving the complaint as quickly as possible and agree a course of action with the Customer.

12.3 Mediahawk is registered with an Alternative Dispute Resolution scheme and if it is not possible to resolve the complaint satisfactorily or if the dispute has exceeded eight weeks the Customer should contact the Alternative Dispute Resolution scheme directly. Further details may be found in the Mediahawk Code of Practice for Complaints procedure which is available by contacting Mediahawk Client Services.

13.0 GENERAL

13.1 Mediahawk shall address all invoices and serve any notices on the Customer pursuant to this Agreement in writing by post to the address set out in the Quote or Order Agreement or the Customer’s registered office or any other address provided by the Customer for this purpose.

13.2 The Customer shall serve any notice pursuant to this Agreement by post on Mediahawk at its registered office address.

13.3 All documents shall be deemed served 48 hours after posting.

13.4 Subject to clause 13.5 below, 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) and that it has only relied upon matters set out in this Agreement in deciding to enter into this Agreement.

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

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

13.7 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.

13.8 The Customer shall not assign or try to assign any or all of the rights and responsibilities under the Agreement without Mediahawk’s prior approval. Mediahawk may transfer its right and obligations hereunder to a new Operator in which circumstances the Customer shall enter into a new Agreement in the same terms as this with the new Operator.

13.9 Mediahawk reserves the right to block IP addresses where it is believed there is misuse of the nominated website which results in receiving excessive visits that are not deemed to be true visitors.

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

13.11 Mediahawk may require a variation to the terms and conditions of the Agreement if so required by legislation, or the Operator or Mediahawk.

13.12 Mediahawk shall in its absolute discretion, be entitled to assign, sub-licence, and sub-contract or otherwise transfer this Agreement whether in whole or in part.

13.13 Any dispute as to the sum to which Mediahawk is entitled pursuant to clause 5 shall be referred to a single expert to be appointed by Agreement between the parties or in default by the application of either party to the President for the time being of the Institute of Chartered Accountants. The expert’s fees will be shared equally by the parties.

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

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