Difference Corporation Limited Against Unitel Direct Limited
| Jurisdiction | Scotland |
| Judge | Sheriff N A Ross |
| Neutral Citation | [2019] SC EDIN 56 |
| Court | Sheriff Court |
| Date | 29 July 2019 |
| Docket Number | EDI-CA19-18 |
| Published date | 03 July 2019 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2019] SC EDIN 56
EDI-CA19-18
JUDGMENT OF SHERIFF N A ROSS
in the cause
DIFFERENCE CORPORATION LIMITED
Pursuer
against
UNITEL DIRECT LIMITED
Defender
Pursuer: Docherty
Defender: Boni
Edinburgh 29 June 2019
The sheriff, having resumed consideration of the cause, finds the following facts to be
admitted or proved:-
1. The pursuer trades as supplier of telephone call management software and support
services. It resells and adapts a standard product manufactured by a third party, namely 8x8
Corporation. The defender trades as provider of call centre services for the sale of telecom
and internet services. As part of the defender’s operation it requires to make and receive
telephone calls, a process significantly speeded up by the use of dialling software.
2. In about 2014 the defender entered into a contract with the pursuer for provision of
dialling software and support services, and the provision of such goods and services
continued until 2017. The pursuer was aware that their goods and services were of central
importance to the efficient operation of the defender’s business. In about 2017 the defender
2
informed the pursuer that they were considering switching provider, and contract
negotiations followed.
3. On 3 July 2017 the parties entered into a new replacement contract for the provision
by the pursuer to the defender of the ContractNow platform for telephone call management,
at a lower price than the previous contract. The contract was formed by the pursuer’s
purchase order form dated 13 June 2017 which was electronically signed by Mr Wilkinson of
the defender on 3 July 2017.
4. The pursuer’s purchase order form was sent electronically. It contained a live link via
the internet to the pursuer’s standard terms, accessed by clicking on the link. Mr Wilkinson
received the order form electronically and signed it electronically on 3 July 2017. The link to
the pursuer’s standard terms was in close proximity to the signature line. The link was in
working order, and Mr Wilkinson was able to read the pursuer’s standard terms if he
elected to do so. The defender knew or ought to have known that the pursuer intended that
the contract be regulated by the pursuer’s standard terms, and by accepting the offer agreed
to that. The defender knew or ought to have known in particular that such terms would
limit liability for, amongst other things, consequential and indirect loss caused by any
breach of contract by the pursuer.
5. The existence of the pursuer’s standard terms was thereby fairly brought to the
defender’s notice. Those terms formed part of the parties’ contract. Although the pursuer
intended in 2014 that those terms would apply to the parties’ relationship from 2014
onwards, it is not proved that the defender was aware of these prior to 2017, or that
subsequent actings were in reliance thereon. Notwithstanding this, the said terms did
regulate the July 2017 contract.
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