Terms and Conditions
Last updated: 10 September 2020
(i) Each contract for the supply of voice and data telecommunications services (the "Business Service") by MAGICALL, ("MAGICALL"), a trading name of Barritec Limited, to any Customer (the "Customer") shall be on the terms set out in these Conditions. The Account Creation accepted by MAGICALL (the "Account Creation") and these conditions constitute the contract and any such contract between the Customer and MAGICALL and any particular case is referred to as the "Agreement".
(ii) These Conditions override and take the place of any other terms and conditions which the Customer may seek to use or include.
(iii) The Customer represents and warrants that it is entering into the Agreement for the purposes of and in the course of its business.
2. THE BUSINESS SERVICE
In order it may continue and maintain the level and quality of the Business Service provided MAGICALL reserves the right at all times to change or alter the Business Service provided under the Agreement. MAGICALL shall wherever possible give at least thirty (30) days' prior written notice to the Customer of any such change or alteration.
(i) MAGICALL will provide 30 days notice on the website.
(ii) Continuance of use of MAGICALL's services, is deemed as acceptance of any revised terms.
(i) The agreement so far as it relates to the Business Services shall take affect when, in MAGICALL's discretion, MAGICALL accepts the Customer's request to supply the Business Service. The request and acceptance shall be in writing or by any other method as MAGICALL may allow. The commencement of the Business Service may be delayed until MAGICALL is satisfied that the Customer has paid the initial deposit (if applicable).
(ii) The Agreement will continue until determined by either party giving to the other at least 30 days prior written notice.
(i) The prices MAGICALL charge for the Business Service are as set out in MAGICALL's website which MAGICALL may vary from time to time by giving the Customer not less than 7 days' written notice (giving the Customer the opportunity to terminate the Agreement before the variation takes affect). Notwithstanding the preceding sentence, MAGICALL may introduce reasonable temporary price changes without notice. Unless otherwise stated, prices do not include value added tax ("VAT"), which must be paid in addition at the applicable rate. Where applicable, the Customer is bound to pay HMRC the Reserve VAT as stated on the invoice.
(ii) MAGICALL will calculate charges by reference to data recorded or logged by MAGICALL or on MAGICALL's behalf and not by reference to data recorded or logged by the Customer. Charges will be calculated by reference to use of the Business Services provided to the Customer by the Customer or by someone else (whether or not with the Customers knowledge or permission). Calculations will be based on MAGICALL's data and not on any recorded by the Customer.
(iii) Subject to conditions 4(v), MAGICALL will normally send the customer shortly after the end of each billing period a statement for all charges and other amounts incurred by the Customer during that billing period of or in connection with the Business Service. A billing period will normally be a calendar month but the Customer may be given the opportunity to select an alternative billing period. The Customer must pay the amount shown on the statement in full within 7 days of the date of the statement.
(iv) The Customer must first pay MAGICALL a charge equal to MAGICALL's reasonable legal and/or other expenses for (a) finding the Customer, if the Customer changes its address without first notifying MAGICALL and (b) taking legal proceedings and/or any other steps to obtain payment from the Customer if it fails to pay promptly.
(v) MAGICALL may at any time ask the Customer for a deposit as security for amount payable or to become payable by the Customer under Agreement.
(vi). The Customer is responsible for keeping email address and payment details up-to-date.
(vii). The Customer is responsible for cancelling any billing agreements or subscription services for facilities that they no longer require.
5. USE OF THE SERVICES AND INDEMNITY
(i) The Customer must use the Business Services in accordance with these Conditions, any other conditions as MAGICALL may notify to the Customer from time to time by not less than 30 days' prior written notice, the relevant provisions of the Telecommunications Act 1984 (the "Act"), any other applicable laws and regulations, the relevant provisions (notified to the Customer) of any licence granted under the Act to the Customer, MAGICALL or any supplier of services to MAGICALL and any directions given by the Director General of the Office of Telecommunications or other competent authority (together "Applicable Requirements"). In order for MAGICALL to provide the Business Service the Customer must allow us to place strictly necessary cookies (performance) and First-Party cookies (functionality on their device.
(ii) The Customer must make sure that the Business Service is not used:
(a) for the transmission of any material which is intended to be a hoax call to emergency services or is of defamatory, offensive, abusive, obscene or menacing character ; or
(b) fraudulently or in connection with criminal offence; or
(c) otherwise in a manner which constitutes a violation or infringement of the right of any other party; or
(d) otherwise than for the purposes set out from time to time in MAGICALL's service literature.
(iii)The customer must indemnify MAGICALL against all liabilities, claims, damages, losses and expenses which MAGICALL may incur because of any breach by the Customer of the Customers obligations under the agreement or because of the way in which the Business Service is used.
6. THE CUSTOMER'S EQUIPMENT
The Customer must ensure that any telecommunications equipment which the Customer uses in connection with the Business Service is in good working order and conforms at all times to all Applicable Requirements (including without limitation, the relevant standard or approval under section 22 of the Act). MAGICALL will not be under any obligation to connect or keep connected any such equipment which MAGICALL reasonably does not conform to the provision of any Applicable Requirements. The customer must on request provide MAGICALL with all reasonable information which MAGICALL may require in relation to any of such equipment. The Customer is responsible at all times for the safety and safe custody of such equipment and for the safe use of it and the Business Service.
7. PROVISION OF INFORMATION
The Customer must provide MAGICALL with all information and co-operation which MAGICALL may reasonably require to enable MAGICALL to carry out its obligations.
If at any time the premium rate regulator (known as Phone-paid Services Authority at the time of writing) requests information regarding a MAGICALL customer as part of an investigation or for regulatory purposes, MAGICALL is obliged to provide such information as part of their responsibilities as a network operator. MAGICALL is required under due diligence obligations as a network operator to make test calls once a premium rate service is live. These calls may be recorded for training or regulatory purposes and any recordings may be shared with Phone-paid Services Authority. Phone-paid Services Authority may subsequently make some or all of that information public.
The service provider must comply with the (Phone-paid Services Authority) Code (or such successor version as may from time to time be issued) and any directions that are made by Phone-paid Services Authority in accordance with it.
8. BROWSER SUPPORT
MAGICALL supports the latest versions of the following desktop browsers.
If the Customer is not using one of these browsers (or latest versions) to interact with MAGICALL's website, please download or upgrade to a new browser or supported version. If the Customer elects not to upgrade the Customer's desktop browser or other device, the Customer experience may not be optimal, or the Customer may not be able to use certain tools on MAGICALL's website.
PLEASE NOTE: To provide MAGICALL's customers the most effective and secure online access to their accounts, MAGICALL is continually upgrading MAGICALL's online services. As MAGICALL adds new features and enhancements to MAGICALL's service, older browser versions or Internet devices may not support these new standards. Upgrading to a new version will enhance the Customer's security and experience on MAGICALL's website.
For the Customer's increased protection, MAGICALL does not support beta versions of (supported) browsers. MAGICALL regularly monitors and tests browsers to ensure the highest security standards for MAGICALL's customers. Browsers such as Firefox, and Chrome may auto update to the latest browser version compatible with the Customer's operating system. If the Customer is using the latest release of the Customer browser, please be aware that there may be a delay in MAGICALL's support of the new browser release while it conducts a review to ensure it meets MAGICALL's security standards. MAGICALL recommends that the Customer downloads and installs a supported browser until the new version is officially supported.
9. AVAILABILITY AND STANDARD OF SERVICE
(i) Wherever possible MAGICALL will give written notification to the Customer of all scheduled Business Service maintenance alterations or suspensions which shall affect the Customer, such notice to be given at least seven (7) days prior to the scheduled event.
(ii) Wherever possible MAGICALL shall implement all scheduled Business Service maintenance, alteration or suspensions outside normal working hours of the Customers Business.
(iii) If the Customer gives notification to MAGICALL of a defect, fault or impairment in the provision of the Business Service, then MAGICALL shall use its reasonable endeavours to resolve the defect, fault or impairment as reasonably practicable.
(iv) If it is determined that the defect, fault or impairment is a result of;
(a) any negligence wilful act omission or fault on the part of the Customer or the Customers agents or any breach of this Agreement on the part of the Customer;
(b) the failure or malfunction of the Customer's equipment, then MAGICALL may recover from the Customer all reasonable costs incurred in remedying the defect, fault or impairment.
10. SERVICE INTERRUPTION
(i) MAGICALL will use reasonable endeavours to provide services, but MAGICALL shall not be liable for any failure resulting from factors outside its control. In particular, MAGICALL is not responsible for operation of the BT core telecommunications network.
11. DATA PROTECTION
(ii) Where the Customer is acting in the course of its business, the following provisions shall apply:
(a) for the purposes of this Condition 11(ii), the following definition shall apply:
Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ( (EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
(b) MAGICALL and the Customer will comply with all applicable requirements of the Data Protection Legislation. This Condition 11(ii) is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
(d) Following the termination of the MAGICALL Business Service, MAGICALL will retain Personal Data for 7 years following termination of the Business Service. The type of Personal Data and categories of data subjects will be all possible in the context of the Customer's business or use of the Business Service (or that of the Customer's client, as the case may be), including, for example, telephone numbers, time of call, duration of call.
(e) Without prejudice to the generality of Condition 11(ii)(b), the Customer will ensure that the Customer (or its client, as the case may be) has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to MAGICALL for the duration and purposes of the Customer's (or its client's, as the case may be) use of the Business Service.
(f) Without prejudice to the generality of Condition 11(ii)(b), MAGICALL shall, in relation to any Personal Data processed in connection with the performance by MAGICALL of its obligations under the Agreement:
A. process that Personal Data only on written instructions of the Customer (or the Customer's client, as the case may be) unless MAGICALL is required by the laws of any member of the European Union or by the laws of the European Union applicable to MAGICALL to process Personal Data ( Applicable Laws). Where MAGICALL is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, MAGICALL shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit MAGICALL from so notifying the Customer;
B. ensure that MAGICALL have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
C. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
D. not transfer any Personal Data outside of the European Economic Area unless MAGICALL complies with reasonable instructions notified to MAGICALL in advance by the Customer (or the Customer's client, as the case may be) with respect to the transfer and processing of the Personal Data;
E. taking into account the nature of processing and the information available to MAGICALL, assist the Customer (or the Customer's client, as the case may be), in responding to any request from a Data Subject and in ensuring compliance with MAGICALL's obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, there is no cost to the request, save where a reasonable fee is charged, where the request is repetitive or excessive;
F. at the Customer's written direction (or its client's written direction, as the case may be), delete or return Personal Data and copies thereof to the Customer (or the Customer's client, as the case may be) on termination of the Agreement unless required by Applicable Law to store the Personal Data; and
G. make available to the Customer (or the Customer's client, as the case may be) all information necessary to demonstrate MAGICALL's compliance with this Condition 11 and allow for audits by the Customer or its designated auditor (or the Customer's client or its designated auditor, as the case may be), such audits to be conducted on reasonable notice (but in any event on giving MAGICALL not less than seven (7) days' notice, unless the Customer (or the Customer's client, as the case may be) has reasonable grounds for giving shorter notice) and during MAGICALL's normal business hours and providing that the confidentiality of MAGICALL's other customers is ensured by such means as MAGICALL or any applicable regulator require.
(g) The Customer consents to MAGICALL appointing third-party processors of Personal Data under the Agreement. MAGICALL confirms that MAGICALL have entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Condition 11.
(h) MAGICALL shall not be deemed to have breached its obligations under this Condition 11 solely by virtue of a breach of the Data Protection Legislation by the Customer as Data Controller or Data Processor (as the case may be) and MAGICALL shall not be liable to the Customer (or its client, as the case may be) for any claim brought by a data subject arising from any action or omission by MAGICALL to the extent that such action or omission resulted directly from the Customer's instructions (or the instructions of the Customer's client, as the case may be) nor for any failure to carry out an instruction from the Customer (or the Customer's client, as the case may be) if MAGICALL has notified the Customer (or the Customer's client, as the case may be) that to do so would be in breach of Data Protection Legislation.
(i) Without prejudice to any accrued or other rights which the Customer and MAGICALL may respectively have, the Customer or MAGICALL may, by written notice served on the other, terminate the Customer's right to use the Business Service immediately in the event that:
(a) the other party is in breach of the Agreement and, if the breach can be remedied, fails to remedy it within a reasonable time specified in the notice; or
(b) a voluntary arrangement is proposed or approved in relation to the other party, or an administration order is made in relation to the other party; or a receiver or administrative receiver is appointed of any of the other party's assets or undertaking; or a winding-up resolution or petition is passed or presented (otherwise than for the purpose of reconstruction or amalgamation); or any circumstances arise which entitle the court or creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or to make a winding-up order, in relation to the other party; or
(c) an interim order is applied for or made, a voluntary arrangement approved, a petition for a bankruptcy order is presented, or a bankruptcy or is made, against the other party, or a receiver or trustee in bankruptcy is appointed of the other party's estate.
(ii) Without prejudice to MAGICALL accrued or other rights, MAGICALL may (a) terminate the Customers right to use the Business Service immediately by notice in writing to the Customer and (b) demand (and the Customer must at the time of that demand make) immediate payment of all charges, fees and the other amount for or in connection with the Business Service, in the event that:
(a) the Customer fails to make any payment when it becomes due to MAGICALL; or
(b) any licence of MAGICALL (or the licence of any relevant supplier to MAGICALL) expires or is revoked (and in either case is not immediately replaced) or is modified in any respect which materially and adversely affects MAGICALL's ability to provide the Business Service; or
(c) a licence under which the Customer has the right to run the Customers telecommunications equipment and connect it to MAGICALL's system is revoked or amended or otherwise ceases to be valid and is not immediately replaced by another valid licence.
(i) If the Customer wishes to cancel the Business Service, after commencement of this agreement but before the Business Service commences, MAGICALL may agree to this on the basis that MAGICALL will pay to the Customer any deposit the Customer has paid in advance and the Customer must reimburse MAGICALL all costs which MAGICALL has reasonably incurred including but not limited to the cost of work done and Equipment and services supplied or to be supplied.
(ii) Refunds for unused top-up credit are subject to a £20+VAT administration fee and will be paid within 30 days of receipt of a refund request.
14. SUSPENSION OF THE SERVICE
(i) MAGICALL may elect to suspend forthwith provision of the Business Service until further notice in the event that:
(a) MAGICALL is entitled to terminate the Business Service (but any exercise by MAGICALL of its right of suspension under this Condition shall not exclude MAGICALL's right subsequently to terminate the Agreement):
(b) MAGICALL needs to carry out emergency maintenance to any equipment or other systems in MAGICALL's absolute discretion; or
(ii) In the event that MAGICALL exercises MAGICALL's right to suspend the Business Service pursuant to the above, MAGICALL shall wherever reasonably possible give prior notice to the Customer of such suspension.
(iii) Where the suspension is implemented other than as a consequence of the breach, fault or omission of the Customer, MAGICALL shall make no charge to the Customer in respect of the implementation of the suspension and/or recommencement of the provision of the Business Service.
(iv) where the suspension is implemented as a consequence of the breach, fault or omission of the Customer, the Customer shall at MAGICALL's option pay MAGICALL all reasonable costs and expenses incurred by the implementation of such suspension and/or recommencement of the provision of the Business Service as appropriate.
(d) the Customer is found to be using the word "MAGICALL" or any derivative in a paid advertising model like Google Adwords.
15. CHARGES AND TERMINATION
(i) Unless otherwise stated, prices and other amounts payable to MAGICALL under the Agreement do not include VAT, which must be paid in addition at the applicable rate.
(ii) In the case of Invoicing, and Top-up and Bonus Credit, then
1). All individual call durations will be rounded up to the nearest minute E.g. a call lasting 50 seconds will be rounded up to one minute.
2). VAT will then be added to the total and rounded down to the nearest penny e.g. 15.8 pence will become 15 pence.
3). Transferral of numbers from one MAGICALL account to another will be subject to an administration fee set at current to £25.
(b) Top-up and Bonus Credit
1). Top-up, also known as call credit or account balance, is drawn down on a per minute basis until the call credit either:
(i) runs out,
(ii) topped up manually, follow a low balance or suspension notification,
(iii) or, an auto top-up is applied.
2). Accounts can be topped up manually or via Auto Top-up when a low threshold is reached. Account balances are updated immediately following a successful card payment.
3). Refunds of call credit can be requested, and are subject to an administration fee of £20+VAT.
4). Bonus top-up is not eligible to be refunded.
5). Valid refund requests will be processed within 30 days of receipt of any such request.
6). Refunds will be deemed invalid if requested beyond any 365-day inactivity period.
7). Without prejudice to MAGICALL accrued or other rights, MAGICALL may close any account that has been unused after a period of inactivity. This is defined as no calls received on any number(s) on the account in a 12 month, or 365-day period. The Customer will lose any unused credit, unless a valid refund request is received within the 365-day inactivity period.
16. SOFTWARE AND DOCUMENTATION
Intellectual property rights in all software supplied to the Customer remain the property of MAGICALL or that of its licensor. MAGICALL grants the Customer a non-exclusive non-transferable licence to use the software for the purpose of using the Business Service and for no other purpose.
17. MAGICALL'S LIABILITY
(i) Nothing in these Conditions shall exclude or restrict any liability which MAGICALL may have for
(a) breach of any of the terms implied by section 12 of the Sale of Goods Act 1979 or section 8 of the Supply of Goods (Implied Terms) Act 1973 or (b) death or personal injury resulting from MAGICALL negligence (which in Conditions 22(i) and 22(ii) shall mean negligence or breach of duty as defined in the Unfair Contract Terms Act 1997) or that of MAGICALL's employees while acting in the course of their employment or (c) fraud (d) any other liability to the extent that by law it cannot be excluded, restricted or limited.
(ii) MAGICALL will be liable for physical damage to the Customer's property (but not for loss of the type referred to in Condition 22(iv) which is caused by MAGICALL's negligence (or that of MAGICALL's employees or sub-contractors while acting in the course of their employment) provided that such liability shall be limited to sums actually paid to MAGICALL by the Customer for the Business Service and Equipment (where applicable) in the month in which the event giving rise to the liability occurred.
(iii) Subject to Condition 22(i) and (ii), MAGICALL obligations under Conditions 8, 9 and 17 are in lieu of and supersede, exclude and extinguish (and the Customer shall not rely on) any other representation, warranty, condition, collateral contract, liability or obligation whatsoever on the part of MAGICALL (without limitation, whether in contract or tort including negligence or otherwise, whether express or implied or otherwise and whether arising at common law or by statute, custom, usage, course of dealing or otherwise) in relation to the provision of the Business Service or the Equipment or in relation to the Business Service or the Equipment's description, correspondence with sample, satisfactory or other quality or fitness for any purpose (whether or not made known to MAGICALL) for which they are required or their performance, state, condition, design or other characteristics. The Customer waives any rights and remedies which it may nevertheless have and MAGICALL's liability is limited accordingly.
(iv) In any event, subject to Condition 22(i) and (ii), MAGICALL's liability in relation to the Agreement:
(a) the Business Service shall not extend to wasted expenditure, loss of business, revenue or profit or any other indirect, consequential or economic loss, injury or damage, without limitation; and
(b) shall not exceed the aggregate amount paid by the Customer under the Agreement in the month in which the event giving rise to the liability occurred.
(v) In the event of any failure in the Business Service, MAGICALL shall not be liable to the Customer for any charges incurred by the Customer should the Customer direct its traffic to another carrier.
(vi) The provisions of this Condition shall continue to apply even after the Agreement has ended.
(i) The Customer may not without MAGICALL's prior written consent assign or subcontract any of the Customer's rights and obligations under the Agreement.
(ii) MAGICALL may delegate or subcontract performance of all or any of MAGICALL's obligations under the Agreement but no such subcontracting shall affect the Customer's rights against MAGICALL, MAGICALL may assign the benefit of any of MAGICALL's rights under the Agreement. The Customer shall not unreasonably withhold the Customer's consent to any assignment or notation of any of MAGICALL's obligations under the Agreement.
19. LATE & FAILED PAYMENT CHARGES
(i) Without prejudice to MAGICALL's other rights, if MAGICALL does not receive any payment from the Customer when due, MAGICALL shall be entitled to a late payment charge at 3% per annum over the base rate of National Westminster Bank plc in force from time to time on the overdue amount from the due date until final payment, both before and after any judgement.
(ii) In the case of a failed payment method, then
(a) Direct Debit payment failure the customer shall be charged a "Failed Direct Debit" charge of £10.
(b) Credit Card payment failure the customer shall be charged a "Failed Credit Card" charge of £10.
(iii) In the case of reactivation of a suspended account, then MAGICALL will levy a charge of £8.
20. FORCE MAJEURE
MAGICALL will not be liable to the Customer for any loss or damage which may be suffered by the Customer due to any cause beyond MAGICALL's reasonable control including, but not limited to, any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of government, highways authorities, other telecommunications operators or administrators or other competent authorities, war, military operation, or riot, difficulty, delay or failure in manufacture, production or supply by third parties of equipment or any access line.
21. ENTIRE AGREEMENT
This Agreement, and the documents and other items referred to in together represent the entire agreement and understanding between the Customer and MAGICALL in relation to their subject matter and supersede all prior understandings and representations, whether written or oral. The Agreement may only be modified in writing signed by the Customer and MAGICALL. MAGICALL hereby confers the rights of a third party to enforce these contractual terms - namely Phone-paid Services Authority and Ofcom.
22. NO WAIVER AND SEVERANCE
(i) Failure by the Customer or by MAGICALL to exercise or enforce any right under the Agreement will not be treated as a waiver of that right and will not prevent that right or any other right being exercised or enforced on another occasion.
(ii) Any complete or partial invalidity or unenforceability of a provision in these Conditions or the Agreement for any purpose shall not affect its validity or enforceability for any other purpose or the remaining provisions; but it shall be deemed to be severed for that purpose.
(i) Any notice, statement or other document which may be given by either party under the Agreement shall be delivered by email with formal written confirmation served by hand or prepaid first class post to the registered office of the other party or to such other address as may from time to time be notified to the other party in writing.
(ii) Any notice given under this clause 23 shall be deemed to have been received: (a) if by email, on receipt of the email subject to receipt of formal written confirmation in due course; or (b) on the date of delivery if delivered by hand prior to 5.00 pm on a Business Day, otherwise on the next Business Day following the date of delivery; or (c) on the second Business Day from and including the day of posting in the case of pre-paid first class post.
24. GOVERNING LAW
This Agreement shall be governed by and constructed in accordance with English law. The Customer and MAGICALL submit to the non-exclusive jurisdiction of the English courts. MAGICALL may from time to time introduce voluntary arbitration schemes for the settlement of disputes or certain categories of dispute.