Terms & Legal
TERMS & CONDITIONS
Last Modified 22/09/2021
1. DEFINITIONS & INTERPRETATIONS
1.1 Account - means an entity that controls, is controlled by or is under common control with a party, where "control" means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
1.2 Call Charge Balance - The Balance of Call Credit that the Customer has added to their Account. This is on a pre-pay basis. Calls cannot be forwarded without positive call credit on the Customer's Account.
1.3 Automatic Top Up - When the Customer's call credit reaches a minimum balance, (automatically set at £10) call credit will be added automatically from the Customer's pre-selected debit/credit card via Paypal.
1.4 Call Forwarding - The forwarding of calls that are received via a number subscription from NODEMAX LTD to a specified destination. This is also known as call routing, call transfer or call divert.
1.5 Call Management Packages _ A package of features added to your account for use on all numbers. Call management is charged separately from that of the Number or forwarding number. Details of the Call Management Packages offered by NODEMAX LTD are available on the NODEMAX LTD website.
1.5.1 Bolt Ons - Singular features added to individual numbers, which are charged separately from Call Management Packages and your NODEMAX LTD numbers.
1.6 Call Share Revenue - On certain number ranges, the outbound call charges collected by the outbound Operator are passed to NODEMAX LTD. NODEMAX LTD can share some of this with the Customer or End User.
1.7 Charges - The charges payable by the Customer for the supply of Services in accordance with Condition 3.
1.8 Code Of Practice - (Code Of Practice Link) A formulated document dealing with NODEMAX LTD's dispute resolution procedures, produced in accordance with an external body, guidelines and template.
1.9 Ombudsman Services - An alternative dispute resolution service.
1.10 Conditions - These Terms and Conditions, including the Schedules, as amended from time to time in accordance with Condition 15.1.
1.11 Customer - The person or business that subscribes to Services from NODEMAX LTD.
1.12 Contract - The contract between NODEMAX LTD and the Customer for the supply of the Services in accordance with these Conditions.
1.13 End User - A Customer is authorised to act as a third party supplier of NODEMAX LTD's Services. The End User is an individual or business that the Customer supplies the Services to. Otherwise the End User is the Customer.
1.14 Login - The login details for NODEMAX LTD's Control Panel provided to the Customer in accordance with Condition 4.7.
1.15 Hotchilli Cloud Dashboard - The online control panel, also known as myPlatform, developed by NODEMAX LTD, to enable a Customer to access their Account and manage all aspects of their Service.
1.16 Number/Numbers - Means one or more NODEMAX LTD telephone numbers which are allocated to a Customer or end user.
1.17 Subscription - The annual or monthly subscription for all services provided by NODEMAX LTD via one of either Hotchilli Cloud or one of our partner sites.
1.18 Ofcom - The regulatory body of the telecommunications industry.
1.19 Operator - Means the provider of access to the Telecommunications Network.
1.20 Phone-paid Services Authority - Means the UK regulatory body for all premium rate charged telecommunications Services.
1.21 Reclamation - A process by which a Number is deleted from a Customer's Account and added back into NODEMAX LTD's range of available Numbers, subject to a period of isolation, where the Number is unused for such period as NODEMAX LTD deems appropriate, having regard to the quantity of calls to the Number.
1.22 Service Provider - Refers to the supplier of Services to the Customer or End User, other than NODEMAX LTD, with whom the Customer or End User establishes an agreement.
1.23 Service/Services - The Services supplied by NODEMAX LTD to the Customer as set out in the Order and which are more particularly detailed, where appropriate, in the relevant Schedule.
1.24 Telecommunications Network - The public and private telecommunications systems accessed by a Number or by which the Services are made available.
1.25 Alert Balance - The Alert Balance (set at £10 default) at which the Customer's Call Charge Balance will be topped up automatically in accordance with Schedule 2.
1.26 NodeMax Ltd - NODEMAX LTD Limited, a company incorporated and registered in England and Wales with company number 6127089, whose registered office is at 75 Springfield Road, Chelmsford, Essex, CM2 6JB.
1.27 NodeMax Ltd's Website - (https://hotchilli.com) (https://console.hotchilli.com)
1.28 Intellectual Property Rights - All patents, rights to inventions, utility models, copyright and related rights, trademarks, Service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to subscribe to Services in accordance with these Conditions, ordered via NODEMAX LTD'S website.
2.2 The Order shall only be deemed to be accepted when NODEMAX LTD issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of NODEMAX LTD which is not set out in the Contract.
2.4 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.
2.5 Any quotation given by NODEMAX LTD shall not constitute an offer, and is only valid for a period of 10 business days from its date of issue.
2.6 If the Customer is contracting as a consumer, the Customer has certain rights under the Consumer Protection (Distance Selling) Regulations 2000 (the "distance selling regulations") which include cancellation rights. The Customer may cancel a Contract at any time within seven working days, beginning on the Commencement Date, unless NODEMAX LTD have already begun to provide the Services. For the avoidance of doubt, NODEMAX LTD will have begun to provide the Services when a Number has been allocated to the Customer's Account. If the Customer wishes to exercise their cancellation rights under the distance selling regulations, the Customer must email (support@hotchilli.com) within the cancellation period.
3. SUPPLY OF SERVICES
3.1 NODEMAX LTD shall supply the Services to the Customer in accordance with the details set out in the Order in all material respects.
3.2 NODEMAX LTD shall use all reasonable endeavors to meet any performance dates that may or may not be specified, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 NODEMAX LTD shall have the right to make any changes to the Services which 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 NODEMAX LTD shall notify the Customer in any such event.
4. PROVISION OF SERVICES
4.1 Numbers and Call Management Services are added to the Customer's account, immediately upon payment.
4.2 There is no minimum period that the Customer is obliged to use their Numbers or Call Management Services for.
4.3 Services are supplied subject to all of the limitations of the Telecommunications Network as are generally accepted by the industry.
4.4 NODEMAX LTD is unable to guarantee that all overseas systems will be able to access the Services provided by NODEMAX LTD.
4.5 Subject to any alterations that NODEMAX LTD may make in accordance with these Conditions from time to time, the terms on which certain Services are provided to the Customer are contained in the various Schedules to these Conditions.
4.6 Where appropriate, NODEMAX LTD will provide the Customer with login details for NODEMAX LTD Control Panel. NODEMAX LTD is entitled to rely on the fact that any individual logging in to NODEMAX LTD Control Panel (https://hotchilli.com) (https://console.hotchilli.com) using the Customer's details is a representative of that Customer and is authorised to act on their behalf.
4.7 The Customer's use of NODEMAX LTD Control Panel shall be governed by such terms of use as may be published on the NODEMAX LTD website from time to time.
5. NODEMAX LTD'S OBLIGATIONS
5.1 Without prejudice to the limits and exclusions on NODEMAX LTD's liability under the Contract, as provided for under Condition 9, NODEMAX LTD will not be liable for any loss to the Customer arising from issues which are outside of NODEMAX LTD's control. In particular, this condition applies to any interruptions in the operation of the Telecommunications Network.
5.2 NODEMAX LTD will provide a Code of Practice that has been approved by CISAS, or such other external body as may from time to time be appropriate, in relation to complaint handling and dispute resolution.
6. CUSTOMER RESPONSIBILITIES
6.1 The Customer shall:
6.1.1 Be responsible for checking that any Number or Call Management Service that has been allocated to the Customer's Account is set up and operates properly and to report any faults to NODEMAX LTD immediately.
6.1.2 Ensure that the required Information provided to NODEMAX LTD is accurate and complete and shall keep such information up to date, including all contact information, in particular email addresses.
6.1.3 Ensure that any Number allocated to them is not used in an unlawful, improper or damaging manner and will not hold NODEMAX LTD liable in any proceedings or claims relating to improper use of the Number.
6.1.4 Ensure that their login is kept secure.
6.2 If NODEMAX LTD's performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation.
6.2.1 NODEMAX LTD shall without limiting its other rights or remedies have the right to suspend 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 NODEMAX LTD's performance of any of its obligations;
6.2.2 NODEMAX LTD shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this Condition 6.2;
6.2.3 The Customer shall reimburse NODEMAX LTD on written demand for any costs or losses sustained or incurred by NODEMAX LTD arising directly or indirectly from the Customer Default.
7. PAYMENTS & CHARGES
7.1 The charges shall be calculated in accordance with the details published on NODEMAX LTD's website from time to time. All charges are shown exclusive of VAT unless stated otherwise.
7.2 All charges are payable in advance of the provision of Services.
7.3 Payment must be made via credit card/debit card or using a PayPal account. No other forms of payment will be accepted.
7.4 NODEMAX LTD reserves the right to adjust the charges for its Services as it sees fit. In particular, where call forwarding charges increase, which are outside the control of NODEMAX LTD, NODEMAX LTD shall advise the Customer and increase its own related charges by the same proportion.
7.5 Changes to pricing shall be communicated to the Customer via email or by the publishing of them to this website at the time such changes are made.
7.6 Where a Customer requests alterations to the Services, NODEMAX LTD reserves the right to impose such administrative charges as it deems fit. Such administrative charges will be calculated on a time spent basis.
7.7 NODEMAX LTD may impose a £25 reconnection fee in the event that the Customer requests and NODEMAX LTD agrees, to reactivate an Account, number or Service following disconnection, whether such disconnection was as a result of a Customer request or of a breach of these Conditions.
7.8 NODEMAX LTD may impose a charge of minimum £25 for porting a number from NODEMAX LTD to another Service provider or telecommunications network. Such payment to be paid prior to the number being ported via debit/credit card or bank transfer.
7.9 If the Customer fails to make a payment due to NODEMAX LTD under the contract when it falls due for payment, then, without limiting NODEMAX LTD's remedies under Condition 12, the Customer shall pay interest on the outstanding sum either:
7.9.1 At the rate of 4% per annum above Barclays Bank PLC's base lending rate from time to time (or, in the event that Barclays Bank PLC is no longer trading, another commercial lending bank chosen by NODEMAX LTD from time to time); or, at NODEMAX LTD's sole discretion.
7.9.2 In accordance with the Late Payment of Commercial Debts (Interest) Act 1988; accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.10 Service Subscriptions
7.10.1 Certain services provided by NODEMAX LTD are provided on a subscription basis, details for such services can be found on https://hotchilli.com or by emailing sales@hotchilli.com.
7.10.2 Such Subscription services require payment to be made prior to, or on the due date of the invoice via Bank Transfer, PayPal or Credit/Debit Card, no other forms of payment will be accepted.
7.10.3 Where NODEMAX LTD creates an invoice after the due date, payment is to be made immediately via Bank Transfer, PayPal or Credit/Debit Card, no other forms of payment will be accepted.
7.10.4 NODEMAX LTD reserves the right to revoke any discretionary volume discounts upon late payment or where invoices remain due more than 7 days after invoice due date, these invoices may at the sole discretion of NODEMAX LTD be cancelled and re-invoiced at standard pricing.
8. CREDIT/DEBIT CARDS
8.1 In paying for any Service with a credit/debit card, the Customer consents to the details of that card being stored by NODEMAX LTD and for future payments to be processed in accordance with the terms of this Condition 8.
8.2 The card the Customer uses to make their first payment to NODEMAX LTD will automatically become that Account's default card. The Customer will have the option to change the default card on their Account via NODEMAX LTD Control Panel.
8.3 Any card listed against the Customer's Account shall, by default, be listed as an 'active' card. The Customer will have the option to disable or delete a card from the system (subject to there always being at least one active card registered against an Account at all times) via NODEMAX LTD Control Panel.
8.4 When a payment falls due to NODEMAX LTD, whether by virtue of an Automatic Top Up or otherwise, NODEMAX LTD will attempt to take such payment from the default card listed for that Customer's Account. Should NODEMAX LTD be unable to take the payment due from the default card, it will attempt to do so from each of the other active cards on the Account. If NODEMAX LTD is unable to take payment from any of the cards listed for a Customer's Account, it shall repeat the attempt to take such payment at such intervals as it deems fit until the payment in question has been received (by whatever means). NODEMAX LTD shall have no liability whatsoever in respect of, and the Customer shall hold NODEMAX LTD harmless from, any fees that may be charged to the Customer by the Customer's card issuer arising from any attempt to take payment from that Customer's card(s).
8.5 In the event that NODEMAX LTD is unable to take payment in accordance with Condition 8.4, the Customer will be sent notification of that failure and will immediately make the overdue payment, including any accrued interest, using a valid credit/debit card, the details of which will be added to the Customer's Account as a new default card.
8.6 NODEMAX LTD reserves the right to impose an administration charge in the circumstances described in Condition 8.5.
8.7 By using a credit/debit card to pay any sums to NODEMAX LTD, the Customer confirms and warrants to NODEMAX LTD that the credit/debit card being used belongs to them. Any credit/debit card used by the Customer will be subject to validation checks and authorisation by the Customer's card issuer. The Customer's details will be passed to third parties for the purposes of carrying out these checks and reporting any fraudulent activity.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude NODEMAX LTD's liability for:
9.1.1 Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.1.2 Fraud or fraudulent misrepresentation;
9.1.3 Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Subject to Condition 9.1:
9.2.1 NODEMAX LTD shall not 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 including any losses that may result from a deliberate breach of the Contract by NODEMAX LTD, its employees, agents or subcontractors;
9.2.2 NODEMAX LTD's total liability to the Customer in respect of all other losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the contract by NODEMAX LTD, its employees, agents or subcontractors shall not exceed the amount paid to NODEMAX LTD by the Customer in question in the 12 months immediately preceding the date at which the liability arose.
9.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.
9.4 This Condition 9 shall survive termination of the contract.
10. INTELLECTUAL PROPERTY
10.1 All Intellectual Property Rights arising out of or in connection with the Services are the exclusive property of NODEMAX LTD.
10.2 The Customer hereby grants a non-exclusive, irrevocable, royalty-free, worldwide license to NODEMAX LTD for the entirety of the period for which the Customer holds an Account with NODEMAX LTD and for 6 months thereafter to use any trading name used by the Customer, whether or not the name is a registered trade mark, and any Logo for the purpose of identifying the Customer on the NODEMAX LTD website as using the Services.
11. SUSPENSION OR DISCONNECTION OF SERVICES
11.1 NODEMAX LTD may suspend or disconnect all or part of any Services provided to a Customer at any time, without notice, for so long as reasonably required in the event that:
11.1.1 The Customer's call charge balance (where appropriate) reaches £0 (zero pounds) or is in negative balance;
11.1.2 The Customer's Account is in arrears in relation to any payments due to NODEMAX LTD;
11.1.3 If any of the Customer's contact information is incomplete or invalid, or NODEMAX LTD is not satisfied that sufficient information has been provided, in particular if the Customer's email address or call forwarding destination is invalid;
11.1.4 The Customer is in material breach of these conditions or any other agreement between the Customer and NODEMAX LTD;
11.1.5 The Customer acts in such a way or permits anything to be done which, in the reasonable opinion of NODEMAX LTD, relates to the Services and may impair or jeopardise the operation of the Services or any part of the Telecommunications Network;
11.1.6 NODEMAX LTD is, or reasonably considers that it is, required to do so directly or indirectly by law, the Operator, Ofcom or Phone-paid Services Authority;
11.1.7 Such suspension or disconnection is required for modification or maintenance of any equipment, software or other resource used by NODEMAX LTD to provide the Services or in case of emergency;
11.1.8 NODEMAX LTD has reason to believe the Services are being Ordered or are being used in an unlawful, fraudulent or improper manner;
11.1.9 Whenever NODEMAX LTD, in its reasonable opinion, deems it is required to do so.
11.2 The Customer shall remain liable for all charges during any period that their number/s or Service is suspended or disconnected where such suspension or disconnection is attributable to the actions or omissions of the Customer.
12. TERMINATION OF CONTRACT
12.1 NODEMAX LTD may terminate the Contract with immediate effect by giving notice to the Customer if;
12.1.1 The End User's or Customer's Account remains suspended, for whatever reason, for a period of 28 days or more;
12.1.2 NODEMAX LTD is unable to make contact for a period of 28 days by email or telephone using the required information with the end user or Customer;
12.1.3 The Customer is in material breach of the terms of these Conditions and, if capable of remedy, does not remedy this breach within 7 days of the email notification provided by NODEMAX LTD to the email address in the required information specifying the breach and the action required to remedy it;
12.1.4 Any licence, permission, agreement or authorisation granted to the Operator or to NODEMAX LTD necessary for the provision of the Services is suspended, revoked or terminated;
12.1.5 A Number or Service is being used to commit or encourage a criminal offence;
12.1.6 The Customer or End User sends, receives, posts or publishes, whether using NODEMAX LTD's Services or otherwise, any material which is or may be construed as being obscene, pornographic, threatening, malicious, harmful, abusive, offensive, defamatory, indecent, menacing or in breach of confidence, copyright, privacy or any other Intellectual Property Rights;
12.1.7 Ofcom, or any other such body with the power from time to time to do so, revokes NODEMAX LTD's right to use any or all of the Numbers that have been allocated to the Customer.
12.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if;
12.2.1 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) 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;
12.2.2 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;
12.2.3 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 than for 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;
12.2.4 the other party (being an individual) is the subject of a bankruptcy petition or Order;
12.2.5 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;
12.2.6 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);
12.2.7 A floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
12.2.8 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;
12.2.9 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 Condition 13.2.1 to Condition 13.2.8 (inclusive);
12.2.10 The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
12.2.11 The other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
12.3 NODEMAX LTD has the right to terminate the Contract or suspend the Services at any time by giving 30 days' prior notice to the Customer.
12.4 If a Number or Service remains unused for a period of 90 days or more NODEMAX LTD reserves the right to Reclaim the Number.
12.5 A Customer may terminate the Contract at any time by email notification to support@hotchilli.com. The relevant Account shall be closed, and the contract terminated once any outstanding charges have been paid and once NODEMAX LTD have notified the Customer that the Account has been deleted and any numbers reclaimed.
12.6 If a Customer opts to delete a number that has been allocated to their Account, the number will be deleted from their Account and will not be allocated to another Account until such a time as NODEMAX LTD decides it is appropriate for that number to be made available for someone else to use.
12.7 Refunds will only be given where NODEMAX LTD, in its sole discretion, considers it appropriate. For the avoidance of doubt, no refunds will be given in the event of any of the following;
12.7.1 A Customer decides to terminate the Contract more than 30 days after the Commencement Date.
12.7.2 A Customer deletes a number or Service from their Account.
12.7.3 NODEMAX LTD decides to terminate the Contract in accordance with these conditions.
13. TERMINATION CONSEQUENCES
13.1 On termination of the Contract for any reason;
13.1.1 The Customer shall immediately pay to NODEMAX LTD all of NODEMAX LTD's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, NODEMAX LTD shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.1.2 The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;
13.1.3 Conditions which expressly or by implication have effect after termination shall continue in full force and effect.
14. GENERAL
14.1 Force majeure:
14.1.1 For the purposes of these Conditions, Force Majeure Event means an event beyond the reasonable control of NODEMAX LTD including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of NODEMAX LTD or any other party), failure of a utility Service or transport network, 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.
14.1.2 NODEMAX LTD shall not be liable to the Customer as a result of any delay or failure to perform its obligations under these Conditions as a result of a Force Majeure Event.
14.1.3 If the Force Majeure Event prevents NODEMAX LTD from providing any of the Services for more than 7 days, NODEMAX LTD shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Customer.
14.2 Assignment and subcontracting;
14.2.1 NODEMAX LTD may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
14.2.2 The Customer shall not, without the prior written consent of NODEMAX LTD, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.3 Waiver;
14.3.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.3.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.3 Severance;
14.3.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.4 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.5 NODEMAX LTD shall send all invoices and serve any notices on the Customer pursuant to these Conditions by email to the email address supplied by the Customer or any other address provided by the Customer to NODEMAX LTD for this purpose from time to time.
14.6 The Customer shall serve any notice pursuant to these Conditions by email to NODEMAX LTD at (support@hotchilli.com).
14.7 All documents shall be deemed served on NODEMAX LTD upon email confirmation of receipt.
14.8 Where two or more persons constitute the Customer their liability is joint and several.
14.9 NODEMAX LTD may require a variation to these Conditions if so required by legislation, the Operator, Ofcom, Phone-paid Services Authority or any similar authority.
14.10 Any dispute arising out of the Contract shall be dealt with in accordance with the Code of Practice. In the event that the procedure contained within the Code of Practice is unsuccessful or unsatisfactory, the dispute 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 experts' fees will be shared equally by the parties.
14.11 If a Customer is in breach of these Conditions and NODEMAX LTD terminates the Contract as a result, NODEMAX LTD may contact any End Users associated with the Customer's Account and will offer to provide the End User with the Services they had previously been receiving directly without any liability to the Customer whatsoever.
14.12 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.13 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter (other than as covered by Condition 15.11) or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with, English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
SCHEDULE ONE - AUTOMATIC TOPUP
15. The Customer can activate the Automatic Top Up Service by logging in to NODEMAX LTD Control Panel. It can be activated either by topping up, when the Customer will see an option to activate the Service, or by allocating a saved card on their Account for the Automatic Top Up Service.
16. Please note, if activated whilst topping up, the first payment will be made with the initiating transaction. It will be active as soon as this payment has been processed. In the case of activating by allocating a saved card, it will be active as soon as the change is confirmed by the Customer. By default, the Threshold shall be set at £10.
17. The Customer can email NODEMAX LTD's Customer Services at support@hotchilli.com who will also be able to make amendments to the amount for any Automatic Top Up, the Threshold on the Account or the credit/debit card that is debited.
18. If the Customer's credit or debit card details change at any time, the Customer should contact NODEMAX LTD immediately or add the new details to their Account using NODEMAX LTD's Control Panel. If the Customer does not do this, payments to the Customer's Pay As You Go Account may fail meaning that the balance will not be topped up. This may in turn lead to disruption to the Customer's Service.
19. By activating the Automatic Top Up Service, the Customer confirms that the credit/debit card being used belongs to the Customer. Any credit/debit card used for the Automatic Top Up Services will be subject to validation checks and authorisation by the Customer's card issuer. The Customer's details will be passed to third parties for the purposes of carrying out these checks and reporting any fraudulent activity.
20. NODEMAX LTD is entitled to suspend or terminate any Customer's Automatic Top Up Service at any time for any reason and will give the Customer reasonable notice of this where possible.
21. NODEMAX LTD reserves the right to amend or vary the terms of this Schedule 1 or to withdraw the Automatic Top Up payment methods at any time on reasonable notice.
22. NODEMAX LTD cannot be held responsible for payment failures or payment errors caused by third party software or third party systems.
SCHEDULE TWO - CALL SHARE
23. Call Share Revenue is payable on 0844, 0871 and 070 Personal numbers.
24. In the case of 070 numbers, Ofcom does not allow revenue to be paid directly to the End User.
25. Revenue will only be payable should the number of inbound minutes received through the Number exceed the following:
25.1. For 0844 numbers, 2,000 daytime minutes per month.
25.2. For 0871 numbers, 1,000 daytime minutes per month.
25.3. For 070 numbers, 50 daytime minutes per month.
26. Revenue is not payable for an 0844 or 0871 number that is being forwarded to a mobile destination.
27. The minimum Revenue payment NODEMAX LTD shall make is £50. If the Call Share Revenue due to a Customer is not more than £50, it is the Customer's responsibility to invoice NODEMAX LTD at a time when their accrued Revenue exceeds £50.
28. The rate per minute at which Revenue will be calculated shall be agreed upon between NODEMAX LTD and the Customer. It shall be the Customer's responsibility to ensure that such an agreement is reached before the relevant Number is used. No Revenue shall be payable to the Customer in respect of inbound minutes received prior to an agreement being reached in accordance with this paragraph and also the completion of a Self-Billing Contract.
29. NODEMAX LTD shall issue a Self-Billing Invoice on behalf of the Customer with the revenue amount.
30. Call Share Revenue is paid on a monthly basis within 120 days of the receipt of the Customer's invoice by bank transfer. NODEMAX LTD must receive an invoice from the Customer in Order to pay Call Share Revenue.
31. NODEMAX LTD shall be entitled to withhold Revenue due to the Customer:
31.1. Upon the suspension of the Service in accordance with the Contract.
31.2. If NODEMAX LTD reasonably suspects the Customer is in breach of any term of these Conditions or any other agreement between the parties;
31.3. If NODEMAX LTD reasonably suspects the Customer has increased its entitlement to Revenue by fraudulent or improper means;
31.4. If NODEMAX LTD has not received the corresponding payment from the Operator.
32. NODEMAX LTD shall be entitled to offset any charges due to NODEMAX LTD against Revenue due to the Customer.
SCHEDULE THREE - VOICE RECORDING
33. The Customer can Order Call Management Services from NODEMAX LTD through NODEMAX LTD Control Panel. Some of these Services require recordings as part of their set up. NODEMAX LTD can provide professional voice recording services for these purposes.
34. In Order to engage NODEMAX LTD's voice recording services, the Customer must provide NODEMAX LTD with a script of what is to be recorded by email to voice.recordings@hotchilli.com. NODEMAX LTD will then respond by email giving the Customer a quote to produce the recording of that script.
35. If the Customer wishes to proceed with the PVR Service on the basis of the quote provided, the Customer must then make the relevant payment through NODEMAX LTD Control Panel.
36. Following receipt of the relevant payment, NODEMAX LTD will arrange for the Recording to be made and, once completed, will upload the file to the Customer's Account or, at the request of the Customer, will send the Recording to the Customer in such format as is required.
37. The Customer is responsible for checking the accuracy and quality of the Recording and should notify NODEMAX LTD immediately if it becomes aware of any defect or other issue with a Recording. Such notification should include details of exactly what action the Customer considers is required to rectify the relevant issue.
38. NODEMAX LTD will use its reasonable endeavors to rectify any defect, mistake or other issue with a Recording that is brought to its attention by a Customer.
39. As between NODEMAX LTD and the Customer, any Intellectual Property Rights in a Recording produced in accordance with these Conditions shall be the exclusive property of NODEMAX LTD. The Customer's use of any such recording shall be on the basis of a non-exclusive license which is granted for such time as the Customer holds an Account with NODEMAX LTD.
Last Modified 22/09/2021
1. DEFINITIONS & INTERPRETATIONS
1.1 Account - means an entity that controls, is controlled by or is under common control with a party, where "control" means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
1.2 Call Charge Balance - The Balance of Call Credit that the Customer has added to their Account. This is on a pre-pay basis. Calls cannot be forwarded without positive call credit on the Customer's Account.
1.3 Automatic Top Up - When the Customer's call credit reaches a minimum balance, (automatically set at £10) call credit will be added automatically from the Customer's pre-selected debit/credit card via Paypal.
1.4 Call Forwarding - The forwarding of calls that are received via a number subscription from NODEMAX LTD to a specified destination. This is also known as call routing, call transfer or call divert.
1.5 Call Management Packages _ A package of features added to your account for use on all numbers. Call management is charged separately from that of the Number or forwarding number. Details of the Call Management Packages offered by NODEMAX LTD are available on the NODEMAX LTD website.
1.5.1 Bolt Ons - Singular features added to individual numbers, which are charged separately from Call Management Packages and your NODEMAX LTD numbers.
1.6 Call Share Revenue - On certain number ranges, the outbound call charges collected by the outbound Operator are passed to NODEMAX LTD. NODEMAX LTD can share some of this with the Customer or End User.
1.7 Charges - The charges payable by the Customer for the supply of Services in accordance with Condition 3.
1.8 Code Of Practice - (Code Of Practice Link) A formulated document dealing with NODEMAX LTD's dispute resolution procedures, produced in accordance with an external body, guidelines and template.
1.9 Ombudsman Services - An alternative dispute resolution service.
1.10 Conditions - These Terms and Conditions, including the Schedules, as amended from time to time in accordance with Condition 15.1.
1.11 Customer - The person or business that subscribes to Services from NODEMAX LTD.
1.12 Contract - The contract between NODEMAX LTD and the Customer for the supply of the Services in accordance with these Conditions.
1.13 End User - A Customer is authorised to act as a third party supplier of NODEMAX LTD's Services. The End User is an individual or business that the Customer supplies the Services to. Otherwise the End User is the Customer.
1.14 Login - The login details for NODEMAX LTD's Control Panel provided to the Customer in accordance with Condition 4.7.
1.15 Hotchilli Cloud Dashboard - The online control panel, also known as myPlatform, developed by NODEMAX LTD, to enable a Customer to access their Account and manage all aspects of their Service.
1.16 Number/Numbers - Means one or more NODEMAX LTD telephone numbers which are allocated to a Customer or end user.
1.17 Subscription - The annual or monthly subscription for all services provided by NODEMAX LTD via one of either Hotchilli Cloud or one of our partner sites.
1.18 Ofcom - The regulatory body of the telecommunications industry.
1.19 Operator - Means the provider of access to the Telecommunications Network.
1.20 Phone-paid Services Authority - Means the UK regulatory body for all premium rate charged telecommunications Services.
1.21 Reclamation - A process by which a Number is deleted from a Customer's Account and added back into NODEMAX LTD's range of available Numbers, subject to a period of isolation, where the Number is unused for such period as NODEMAX LTD deems appropriate, having regard to the quantity of calls to the Number.
1.22 Service Provider - Refers to the supplier of Services to the Customer or End User, other than NODEMAX LTD, with whom the Customer or End User establishes an agreement.
1.23 Service/Services - The Services supplied by NODEMAX LTD to the Customer as set out in the Order and which are more particularly detailed, where appropriate, in the relevant Schedule.
1.24 Telecommunications Network - The public and private telecommunications systems accessed by a Number or by which the Services are made available.
1.25 Alert Balance - The Alert Balance (set at £10 default) at which the Customer's Call Charge Balance will be topped up automatically in accordance with Schedule 2.
1.26 NodeMax Ltd - NODEMAX LTD Limited, a company incorporated and registered in England and Wales with company number 6127089, whose registered office is at 75 Springfield Road, Chelmsford, Essex, CM2 6JB.
1.27 NodeMax Ltd's Website - (https://hotchilli.com) (https://console.hotchilli.com)
1.28 Intellectual Property Rights - All patents, rights to inventions, utility models, copyright and related rights, trademarks, Service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to subscribe to Services in accordance with these Conditions, ordered via NODEMAX LTD'S website.
2.2 The Order shall only be deemed to be accepted when NODEMAX LTD issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of NODEMAX LTD which is not set out in the Contract.
2.4 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.
2.5 Any quotation given by NODEMAX LTD shall not constitute an offer, and is only valid for a period of 10 business days from its date of issue.
2.6 If the Customer is contracting as a consumer, the Customer has certain rights under the Consumer Protection (Distance Selling) Regulations 2000 (the "distance selling regulations") which include cancellation rights. The Customer may cancel a Contract at any time within seven working days, beginning on the Commencement Date, unless NODEMAX LTD have already begun to provide the Services. For the avoidance of doubt, NODEMAX LTD will have begun to provide the Services when a Number has been allocated to the Customer's Account. If the Customer wishes to exercise their cancellation rights under the distance selling regulations, the Customer must email (support@hotchilli.com) within the cancellation period.
3. SUPPLY OF SERVICES
3.1 NODEMAX LTD shall supply the Services to the Customer in accordance with the details set out in the Order in all material respects.
3.2 NODEMAX LTD shall use all reasonable endeavors to meet any performance dates that may or may not be specified, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 NODEMAX LTD shall have the right to make any changes to the Services which 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 NODEMAX LTD shall notify the Customer in any such event.
4. PROVISION OF SERVICES
4.1 Numbers and Call Management Services are added to the Customer's account, immediately upon payment.
4.2 There is no minimum period that the Customer is obliged to use their Numbers or Call Management Services for.
4.3 Services are supplied subject to all of the limitations of the Telecommunications Network as are generally accepted by the industry.
4.4 NODEMAX LTD is unable to guarantee that all overseas systems will be able to access the Services provided by NODEMAX LTD.
4.5 Subject to any alterations that NODEMAX LTD may make in accordance with these Conditions from time to time, the terms on which certain Services are provided to the Customer are contained in the various Schedules to these Conditions.
4.6 Where appropriate, NODEMAX LTD will provide the Customer with login details for NODEMAX LTD Control Panel. NODEMAX LTD is entitled to rely on the fact that any individual logging in to NODEMAX LTD Control Panel (https://hotchilli.com) (https://console.hotchilli.com) using the Customer's details is a representative of that Customer and is authorised to act on their behalf.
4.7 The Customer's use of NODEMAX LTD Control Panel shall be governed by such terms of use as may be published on the NODEMAX LTD website from time to time.
5. NODEMAX LTD'S OBLIGATIONS
5.1 Without prejudice to the limits and exclusions on NODEMAX LTD's liability under the Contract, as provided for under Condition 9, NODEMAX LTD will not be liable for any loss to the Customer arising from issues which are outside of NODEMAX LTD's control. In particular, this condition applies to any interruptions in the operation of the Telecommunications Network.
5.2 NODEMAX LTD will provide a Code of Practice that has been approved by CISAS, or such other external body as may from time to time be appropriate, in relation to complaint handling and dispute resolution.
6. CUSTOMER RESPONSIBILITIES
6.1 The Customer shall:
6.1.1 Be responsible for checking that any Number or Call Management Service that has been allocated to the Customer's Account is set up and operates properly and to report any faults to NODEMAX LTD immediately.
6.1.2 Ensure that the required Information provided to NODEMAX LTD is accurate and complete and shall keep such information up to date, including all contact information, in particular email addresses.
6.1.3 Ensure that any Number allocated to them is not used in an unlawful, improper or damaging manner and will not hold NODEMAX LTD liable in any proceedings or claims relating to improper use of the Number.
6.1.4 Ensure that their login is kept secure.
6.2 If NODEMAX LTD's performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation.
6.2.1 NODEMAX LTD shall without limiting its other rights or remedies have the right to suspend 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 NODEMAX LTD's performance of any of its obligations;
6.2.2 NODEMAX LTD shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this Condition 6.2;
6.2.3 The Customer shall reimburse NODEMAX LTD on written demand for any costs or losses sustained or incurred by NODEMAX LTD arising directly or indirectly from the Customer Default.
7. PAYMENTS & CHARGES
7.1 The charges shall be calculated in accordance with the details published on NODEMAX LTD's website from time to time. All charges are shown exclusive of VAT unless stated otherwise.
7.2 All charges are payable in advance of the provision of Services.
7.3 Payment must be made via credit card/debit card or using a PayPal account. No other forms of payment will be accepted.
7.4 NODEMAX LTD reserves the right to adjust the charges for its Services as it sees fit. In particular, where call forwarding charges increase, which are outside the control of NODEMAX LTD, NODEMAX LTD shall advise the Customer and increase its own related charges by the same proportion.
7.5 Changes to pricing shall be communicated to the Customer via email or by the publishing of them to this website at the time such changes are made.
7.6 Where a Customer requests alterations to the Services, NODEMAX LTD reserves the right to impose such administrative charges as it deems fit. Such administrative charges will be calculated on a time spent basis.
7.7 NODEMAX LTD may impose a £25 reconnection fee in the event that the Customer requests and NODEMAX LTD agrees, to reactivate an Account, number or Service following disconnection, whether such disconnection was as a result of a Customer request or of a breach of these Conditions.
7.8 NODEMAX LTD may impose a charge of minimum £25 for porting a number from NODEMAX LTD to another Service provider or telecommunications network. Such payment to be paid prior to the number being ported via debit/credit card or bank transfer.
7.9 If the Customer fails to make a payment due to NODEMAX LTD under the contract when it falls due for payment, then, without limiting NODEMAX LTD's remedies under Condition 12, the Customer shall pay interest on the outstanding sum either:
7.9.1 At the rate of 4% per annum above Barclays Bank PLC's base lending rate from time to time (or, in the event that Barclays Bank PLC is no longer trading, another commercial lending bank chosen by NODEMAX LTD from time to time); or, at NODEMAX LTD's sole discretion.
7.9.2 In accordance with the Late Payment of Commercial Debts (Interest) Act 1988; accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.10 Service Subscriptions
7.10.1 Certain services provided by NODEMAX LTD are provided on a subscription basis, details for such services can be found on https://hotchilli.com or by emailing sales@hotchilli.com.
7.10.2 Such Subscription services require payment to be made prior to, or on the due date of the invoice via Bank Transfer, PayPal or Credit/Debit Card, no other forms of payment will be accepted.
7.10.3 Where NODEMAX LTD creates an invoice after the due date, payment is to be made immediately via Bank Transfer, PayPal or Credit/Debit Card, no other forms of payment will be accepted.
7.10.4 NODEMAX LTD reserves the right to revoke any discretionary volume discounts upon late payment or where invoices remain due more than 7 days after invoice due date, these invoices may at the sole discretion of NODEMAX LTD be cancelled and re-invoiced at standard pricing.
8. CREDIT/DEBIT CARDS
8.1 In paying for any Service with a credit/debit card, the Customer consents to the details of that card being stored by NODEMAX LTD and for future payments to be processed in accordance with the terms of this Condition 8.
8.2 The card the Customer uses to make their first payment to NODEMAX LTD will automatically become that Account's default card. The Customer will have the option to change the default card on their Account via NODEMAX LTD Control Panel.
8.3 Any card listed against the Customer's Account shall, by default, be listed as an 'active' card. The Customer will have the option to disable or delete a card from the system (subject to there always being at least one active card registered against an Account at all times) via NODEMAX LTD Control Panel.
8.4 When a payment falls due to NODEMAX LTD, whether by virtue of an Automatic Top Up or otherwise, NODEMAX LTD will attempt to take such payment from the default card listed for that Customer's Account. Should NODEMAX LTD be unable to take the payment due from the default card, it will attempt to do so from each of the other active cards on the Account. If NODEMAX LTD is unable to take payment from any of the cards listed for a Customer's Account, it shall repeat the attempt to take such payment at such intervals as it deems fit until the payment in question has been received (by whatever means). NODEMAX LTD shall have no liability whatsoever in respect of, and the Customer shall hold NODEMAX LTD harmless from, any fees that may be charged to the Customer by the Customer's card issuer arising from any attempt to take payment from that Customer's card(s).
8.5 In the event that NODEMAX LTD is unable to take payment in accordance with Condition 8.4, the Customer will be sent notification of that failure and will immediately make the overdue payment, including any accrued interest, using a valid credit/debit card, the details of which will be added to the Customer's Account as a new default card.
8.6 NODEMAX LTD reserves the right to impose an administration charge in the circumstances described in Condition 8.5.
8.7 By using a credit/debit card to pay any sums to NODEMAX LTD, the Customer confirms and warrants to NODEMAX LTD that the credit/debit card being used belongs to them. Any credit/debit card used by the Customer will be subject to validation checks and authorisation by the Customer's card issuer. The Customer's details will be passed to third parties for the purposes of carrying out these checks and reporting any fraudulent activity.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude NODEMAX LTD's liability for:
9.1.1 Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.1.2 Fraud or fraudulent misrepresentation;
9.1.3 Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Subject to Condition 9.1:
9.2.1 NODEMAX LTD shall not 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 including any losses that may result from a deliberate breach of the Contract by NODEMAX LTD, its employees, agents or subcontractors;
9.2.2 NODEMAX LTD's total liability to the Customer in respect of all other losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the contract by NODEMAX LTD, its employees, agents or subcontractors shall not exceed the amount paid to NODEMAX LTD by the Customer in question in the 12 months immediately preceding the date at which the liability arose.
9.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.
9.4 This Condition 9 shall survive termination of the contract.
10. INTELLECTUAL PROPERTY
10.1 All Intellectual Property Rights arising out of or in connection with the Services are the exclusive property of NODEMAX LTD.
10.2 The Customer hereby grants a non-exclusive, irrevocable, royalty-free, worldwide license to NODEMAX LTD for the entirety of the period for which the Customer holds an Account with NODEMAX LTD and for 6 months thereafter to use any trading name used by the Customer, whether or not the name is a registered trade mark, and any Logo for the purpose of identifying the Customer on the NODEMAX LTD website as using the Services.
11. SUSPENSION OR DISCONNECTION OF SERVICES
11.1 NODEMAX LTD may suspend or disconnect all or part of any Services provided to a Customer at any time, without notice, for so long as reasonably required in the event that:
11.1.1 The Customer's call charge balance (where appropriate) reaches £0 (zero pounds) or is in negative balance;
11.1.2 The Customer's Account is in arrears in relation to any payments due to NODEMAX LTD;
11.1.3 If any of the Customer's contact information is incomplete or invalid, or NODEMAX LTD is not satisfied that sufficient information has been provided, in particular if the Customer's email address or call forwarding destination is invalid;
11.1.4 The Customer is in material breach of these conditions or any other agreement between the Customer and NODEMAX LTD;
11.1.5 The Customer acts in such a way or permits anything to be done which, in the reasonable opinion of NODEMAX LTD, relates to the Services and may impair or jeopardise the operation of the Services or any part of the Telecommunications Network;
11.1.6 NODEMAX LTD is, or reasonably considers that it is, required to do so directly or indirectly by law, the Operator, Ofcom or Phone-paid Services Authority;
11.1.7 Such suspension or disconnection is required for modification or maintenance of any equipment, software or other resource used by NODEMAX LTD to provide the Services or in case of emergency;
11.1.8 NODEMAX LTD has reason to believe the Services are being Ordered or are being used in an unlawful, fraudulent or improper manner;
11.1.9 Whenever NODEMAX LTD, in its reasonable opinion, deems it is required to do so.
11.2 The Customer shall remain liable for all charges during any period that their number/s or Service is suspended or disconnected where such suspension or disconnection is attributable to the actions or omissions of the Customer.
12. TERMINATION OF CONTRACT
12.1 NODEMAX LTD may terminate the Contract with immediate effect by giving notice to the Customer if;
12.1.1 The End User's or Customer's Account remains suspended, for whatever reason, for a period of 28 days or more;
12.1.2 NODEMAX LTD is unable to make contact for a period of 28 days by email or telephone using the required information with the end user or Customer;
12.1.3 The Customer is in material breach of the terms of these Conditions and, if capable of remedy, does not remedy this breach within 7 days of the email notification provided by NODEMAX LTD to the email address in the required information specifying the breach and the action required to remedy it;
12.1.4 Any licence, permission, agreement or authorisation granted to the Operator or to NODEMAX LTD necessary for the provision of the Services is suspended, revoked or terminated;
12.1.5 A Number or Service is being used to commit or encourage a criminal offence;
12.1.6 The Customer or End User sends, receives, posts or publishes, whether using NODEMAX LTD's Services or otherwise, any material which is or may be construed as being obscene, pornographic, threatening, malicious, harmful, abusive, offensive, defamatory, indecent, menacing or in breach of confidence, copyright, privacy or any other Intellectual Property Rights;
12.1.7 Ofcom, or any other such body with the power from time to time to do so, revokes NODEMAX LTD's right to use any or all of the Numbers that have been allocated to the Customer.
12.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if;
12.2.1 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) 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;
12.2.2 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;
12.2.3 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 than for 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;
12.2.4 the other party (being an individual) is the subject of a bankruptcy petition or Order;
12.2.5 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;
12.2.6 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);
12.2.7 A floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
12.2.8 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;
12.2.9 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 Condition 13.2.1 to Condition 13.2.8 (inclusive);
12.2.10 The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
12.2.11 The other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
12.3 NODEMAX LTD has the right to terminate the Contract or suspend the Services at any time by giving 30 days' prior notice to the Customer.
12.4 If a Number or Service remains unused for a period of 90 days or more NODEMAX LTD reserves the right to Reclaim the Number.
12.5 A Customer may terminate the Contract at any time by email notification to support@hotchilli.com. The relevant Account shall be closed, and the contract terminated once any outstanding charges have been paid and once NODEMAX LTD have notified the Customer that the Account has been deleted and any numbers reclaimed.
12.6 If a Customer opts to delete a number that has been allocated to their Account, the number will be deleted from their Account and will not be allocated to another Account until such a time as NODEMAX LTD decides it is appropriate for that number to be made available for someone else to use.
12.7 Refunds will only be given where NODEMAX LTD, in its sole discretion, considers it appropriate. For the avoidance of doubt, no refunds will be given in the event of any of the following;
12.7.1 A Customer decides to terminate the Contract more than 30 days after the Commencement Date.
12.7.2 A Customer deletes a number or Service from their Account.
12.7.3 NODEMAX LTD decides to terminate the Contract in accordance with these conditions.
13. TERMINATION CONSEQUENCES
13.1 On termination of the Contract for any reason;
13.1.1 The Customer shall immediately pay to NODEMAX LTD all of NODEMAX LTD's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, NODEMAX LTD shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.1.2 The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;
13.1.3 Conditions which expressly or by implication have effect after termination shall continue in full force and effect.
14. GENERAL
14.1 Force majeure:
14.1.1 For the purposes of these Conditions, Force Majeure Event means an event beyond the reasonable control of NODEMAX LTD including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of NODEMAX LTD or any other party), failure of a utility Service or transport network, 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.
14.1.2 NODEMAX LTD shall not be liable to the Customer as a result of any delay or failure to perform its obligations under these Conditions as a result of a Force Majeure Event.
14.1.3 If the Force Majeure Event prevents NODEMAX LTD from providing any of the Services for more than 7 days, NODEMAX LTD shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Customer.
14.2 Assignment and subcontracting;
14.2.1 NODEMAX LTD may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
14.2.2 The Customer shall not, without the prior written consent of NODEMAX LTD, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.3 Waiver;
14.3.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.3.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.3 Severance;
14.3.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.4 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.5 NODEMAX LTD shall send all invoices and serve any notices on the Customer pursuant to these Conditions by email to the email address supplied by the Customer or any other address provided by the Customer to NODEMAX LTD for this purpose from time to time.
14.6 The Customer shall serve any notice pursuant to these Conditions by email to NODEMAX LTD at (support@hotchilli.com).
14.7 All documents shall be deemed served on NODEMAX LTD upon email confirmation of receipt.
14.8 Where two or more persons constitute the Customer their liability is joint and several.
14.9 NODEMAX LTD may require a variation to these Conditions if so required by legislation, the Operator, Ofcom, Phone-paid Services Authority or any similar authority.
14.10 Any dispute arising out of the Contract shall be dealt with in accordance with the Code of Practice. In the event that the procedure contained within the Code of Practice is unsuccessful or unsatisfactory, the dispute 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 experts' fees will be shared equally by the parties.
14.11 If a Customer is in breach of these Conditions and NODEMAX LTD terminates the Contract as a result, NODEMAX LTD may contact any End Users associated with the Customer's Account and will offer to provide the End User with the Services they had previously been receiving directly without any liability to the Customer whatsoever.
14.12 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.13 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter (other than as covered by Condition 15.11) or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with, English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
SCHEDULE ONE - AUTOMATIC TOPUP
15. The Customer can activate the Automatic Top Up Service by logging in to NODEMAX LTD Control Panel. It can be activated either by topping up, when the Customer will see an option to activate the Service, or by allocating a saved card on their Account for the Automatic Top Up Service.
16. Please note, if activated whilst topping up, the first payment will be made with the initiating transaction. It will be active as soon as this payment has been processed. In the case of activating by allocating a saved card, it will be active as soon as the change is confirmed by the Customer. By default, the Threshold shall be set at £10.
17. The Customer can email NODEMAX LTD's Customer Services at support@hotchilli.com who will also be able to make amendments to the amount for any Automatic Top Up, the Threshold on the Account or the credit/debit card that is debited.
18. If the Customer's credit or debit card details change at any time, the Customer should contact NODEMAX LTD immediately or add the new details to their Account using NODEMAX LTD's Control Panel. If the Customer does not do this, payments to the Customer's Pay As You Go Account may fail meaning that the balance will not be topped up. This may in turn lead to disruption to the Customer's Service.
19. By activating the Automatic Top Up Service, the Customer confirms that the credit/debit card being used belongs to the Customer. Any credit/debit card used for the Automatic Top Up Services will be subject to validation checks and authorisation by the Customer's card issuer. The Customer's details will be passed to third parties for the purposes of carrying out these checks and reporting any fraudulent activity.
20. NODEMAX LTD is entitled to suspend or terminate any Customer's Automatic Top Up Service at any time for any reason and will give the Customer reasonable notice of this where possible.
21. NODEMAX LTD reserves the right to amend or vary the terms of this Schedule 1 or to withdraw the Automatic Top Up payment methods at any time on reasonable notice.
22. NODEMAX LTD cannot be held responsible for payment failures or payment errors caused by third party software or third party systems.
SCHEDULE TWO - CALL SHARE
23. Call Share Revenue is payable on 0844, 0871 and 070 Personal numbers.
24. In the case of 070 numbers, Ofcom does not allow revenue to be paid directly to the End User.
25. Revenue will only be payable should the number of inbound minutes received through the Number exceed the following:
25.1. For 0844 numbers, 2,000 daytime minutes per month.
25.2. For 0871 numbers, 1,000 daytime minutes per month.
25.3. For 070 numbers, 50 daytime minutes per month.
26. Revenue is not payable for an 0844 or 0871 number that is being forwarded to a mobile destination.
27. The minimum Revenue payment NODEMAX LTD shall make is £50. If the Call Share Revenue due to a Customer is not more than £50, it is the Customer's responsibility to invoice NODEMAX LTD at a time when their accrued Revenue exceeds £50.
28. The rate per minute at which Revenue will be calculated shall be agreed upon between NODEMAX LTD and the Customer. It shall be the Customer's responsibility to ensure that such an agreement is reached before the relevant Number is used. No Revenue shall be payable to the Customer in respect of inbound minutes received prior to an agreement being reached in accordance with this paragraph and also the completion of a Self-Billing Contract.
29. NODEMAX LTD shall issue a Self-Billing Invoice on behalf of the Customer with the revenue amount.
30. Call Share Revenue is paid on a monthly basis within 120 days of the receipt of the Customer's invoice by bank transfer. NODEMAX LTD must receive an invoice from the Customer in Order to pay Call Share Revenue.
31. NODEMAX LTD shall be entitled to withhold Revenue due to the Customer:
31.1. Upon the suspension of the Service in accordance with the Contract.
31.2. If NODEMAX LTD reasonably suspects the Customer is in breach of any term of these Conditions or any other agreement between the parties;
31.3. If NODEMAX LTD reasonably suspects the Customer has increased its entitlement to Revenue by fraudulent or improper means;
31.4. If NODEMAX LTD has not received the corresponding payment from the Operator.
32. NODEMAX LTD shall be entitled to offset any charges due to NODEMAX LTD against Revenue due to the Customer.
SCHEDULE THREE - VOICE RECORDING
33. The Customer can Order Call Management Services from NODEMAX LTD through NODEMAX LTD Control Panel. Some of these Services require recordings as part of their set up. NODEMAX LTD can provide professional voice recording services for these purposes.
34. In Order to engage NODEMAX LTD's voice recording services, the Customer must provide NODEMAX LTD with a script of what is to be recorded by email to voice.recordings@hotchilli.com. NODEMAX LTD will then respond by email giving the Customer a quote to produce the recording of that script.
35. If the Customer wishes to proceed with the PVR Service on the basis of the quote provided, the Customer must then make the relevant payment through NODEMAX LTD Control Panel.
36. Following receipt of the relevant payment, NODEMAX LTD will arrange for the Recording to be made and, once completed, will upload the file to the Customer's Account or, at the request of the Customer, will send the Recording to the Customer in such format as is required.
37. The Customer is responsible for checking the accuracy and quality of the Recording and should notify NODEMAX LTD immediately if it becomes aware of any defect or other issue with a Recording. Such notification should include details of exactly what action the Customer considers is required to rectify the relevant issue.
38. NODEMAX LTD will use its reasonable endeavors to rectify any defect, mistake or other issue with a Recording that is brought to its attention by a Customer.
39. As between NODEMAX LTD and the Customer, any Intellectual Property Rights in a Recording produced in accordance with these Conditions shall be the exclusive property of NODEMAX LTD. The Customer's use of any such recording shall be on the basis of a non-exclusive license which is granted for such time as the Customer holds an Account with NODEMAX LTD.