Terms for Business Services
These terms and conditions are effective from 13th September 2021.
These are the terms and conditions on which we supply business services to you (if we are supplying business services to you this will be clearly identified in your Order Confirmation).
These terms and conditions are intended to apply to you if you are a business customer intending to use our Services wholly or mainly for business purposes. They do not apply if you are a consumer.
Please read these terms carefully. These terms tell you who we are, how we will provide our Services to you, how you and we may change or end the Contract, what to do if there is a problem and other important information.
We are Swish Fibre Limited (a company incorporated in England and Wales with company registration number 11486930 and whose registered office is at 6th Floor 33 Holborn, London, England, EC1N 2HT) or, as the case may be, a subsidiary company of Swish Fibre Limited. Where you have contracted with a subsidiary of Swish Fibre Limited, this will be clearly set out in your Order Confirmation, along with the name and registered office address of such subsidiary.
You are our customer and your name and contact details will be as set out on your Order Confirmation. The address for delivery of the Services (the “Site”) is the address stated on the Order Confirmation.
How to contact us. You can contact us by telephoning our Business Support Team on 0330 229 0310, by contacting us through any app we operate from time to time, by emailing us at email@example.com or by writing to us at our business address, which is as specified on our Website from time to time.
How we may contact you. If we need to contact you regarding your Services, we will do so by phone, by writing to you at the email address or postal address you provided to us in your order, by sending you an SMS text message or through any app we operate from time to time. We may send customer service announcements to you by email, SMS text message or through any app we operate from time to time. Please ensure that you tell us immediately if any of your contact details change.
In these terms and conditions:
"Acceptable Use Policy" means our acceptable use policy which is available on our Website, as amended or updated from time to time.
"Activation Date" means the date on which we activate your Services pursuant to clause 2.9 below.
"Additional Services" means any additional Services which you have ordered or agreed to purchase from us under clause 9.1 below.
“Broadband Services” means the broadband service provided by us to you whereby you gain direct access to the internet via fibre optic cables (including any ancillary services provided), as more particularly detailed in your Order Confirmation and on our Website. This includes any Additional Services.
"Contract” means the contract entered into between you and us under clause 1.2 below and which is made of up of the following documents: (i) your Initial Order Confirmation (as may be amended by one or more Change Order Confirmations); (ii) these terms and conditions; and (iii) any Service Level Agreement. In addition, we may from time to time notify you, in accordance with clause 9, that other documents and policies are to be included within the Contract. If any of the documents referred to in this definition contradict each other, the document higher up in this list takes priority.
“DIA Services” means the dedicated internet access (or leased line internet or point to point connection) services, as more particularly detailed in your Order Confirmation and on our Website. This includes any Additional Services.
“Early Termination Charge" means such amounts as may be detailed in the Price List, or, if no amounts are so detailed in the Price List, reasonable compensation in respect of the losses, costs, charges and/or expenses we may incur as a result of (i) us terminating the Contract pursuant to clause 11.1 during any Minimum Term; or (ii) you terminating the Contract pursuant to clause 10.3 during any Minimum Term; which may in each case include (but are not limited to) administration costs, the costs of installation (to the extent not already paid for by you), and any loss of profits. When calculating our loss of profits, such calculation will be based on our loss of profits for the duration of the remainder of any Minimum Term.
“Install Cancellation Fee” means the fee set out in the Price List.
"Minimum Term" means any minimum term applicable to your Contract, as specified (if applicable) in your Order Confirmation.
"Monthly Charges" means the monthly charges payable by you for the Services in accordance with clause 4.1 below.
"Order Confirmation" means the order confirmation (including any attachments therein, including any installation form) that we email to you when we accept your order (your “Initial Order Confirmation”), as may be amended from time to time by any supplementary order confirmations (including any attachments therein) that we provide to you (each a “Change Order Confirmation”), e.g. where you order Additional Services from us.
“Order Form” means an order form that you may use to request the provision of Services, such order form to be in a format prescribed by us from time to time.
“Price List” means the price list for business services which is available on our Website (entitled “Charges and fees for Business Services”), as amended or updated from time to time.
"Service Level Agreement" or “SLA” means any service level agreement or arrangement that we have agreed with you, as may amended or updated from time to time.
"Services" means our Broadband Services and/or DIA Services (as the case may be).
"terms and conditions" or "terms" means these terms and conditions.
“User(s)” means any person that uses or accesses a Service (whether or not permitted by you or known to you).
“Website” means our website at www.swishfibre.com or any replacement website notified to you in accordance with these terms and conditions.
"writing" includes emails. When we use the words "writing" or "written" in these terms, this includes emails, SMS text messages and any messages sent through any app we operate from time to time.
“working days”. Where we use the phrase “working days” this excludes Saturdays, Sundays and public holidays.
In these terms and conditions any reference to a contract, a policy or any other document, means that contract, policy or other document as updated from time to time.
1. Our Contract and the Services
1.1 Placing an order. You can request to order our Services by completing an Order Form (or, where applicable, through our Website, through one of our representatives in person or by phone, by email or through any app we operate from time to time). Where your Order does not specify the Installation Charge (to include a zero Installation Charge) we will, subsequent to your order, arrange a survey to confirm the same to you. Once you have been provided with details of your install (including the Installation Charge) you will be given the opportunity to confirm your request to Order. We can only accept orders for areas where our Services are available or, as we continue to build our network, are about to be available. We will notify you if our Services are not available in your area at the time when you place your order or as soon as possible thereafter. Any quotation given by us shall not constitute an offer and is only valid for a period of 60 days from its date of issue, or any such other period as we may notify to you (either at the time of the relevant quote or at some later date).
1.2 How we will accept (or change) your order. Our acceptance of your order will take place when we email your Initial Order Confirmation to you at which point the Contract will come into existence. Changes made to the Services we provide to you in accordance with these terms will only take place when we email you a Change Order Confirmation.
1.3 What you have ordered. Your Order Confirmation contains all the details of the Services you have ordered which we agree to supply to you in accordance with these terms. The Services shall either be Broadband Services or DIA Services, as specified in the Order Confirmation.
1.4 IP addresses. Unless we have agreed to provide you with a static IP address, we cannot guarantee that an IP address can be made available to you as part of the Services and the provision of an IP address is within our sole discretion. Unless we have agreed to provide you with a static IP address, the IP address allocated to you may be varied at any time. Any and all IP addresses will, at all times, belong to us. You may not sell or agree to transfer the IP address to any person. We grant to you a non-exclusive, non-transferable licence during the term of the Contract to use the IP address while you receive internet access from us which will end if this Contract ends.
1.5 Contract Term.
(a) Your Services will start on the Activation Date. Your Contract may be subject to a Minimum Term. Any such Minimum Term will be communicated or notified to you before you place your order and will also be shown on your Initial Order Confirmation.
(b) Where you make any changes to the Services that are provided to you in accordance with clause 9.1 below (e.g. you purchase Additional Services or you upgrade or downgrade the Services provided to you), your Minimum Term (if applicable) may be amended. Any such amendment will be communicated or notified to you before you place the relevant order and will also be shown on your Change Order Confirmation.
(c) Other than as expressly contemplated herein, you must keep and pay for all of the Services ordered for the whole of any agreed Minimum Term. Failure to do so may result in us charging you certain amounts in accordance with these terms.
(d) Where your Contract is not subject to a Minimum Term (or after any Minimum Term expires), your Services will automatically continue on a monthly basis, unless and until you or we end the Contract in accordance with these terms.
1.6 Your customer number. We will assign a customer number to your order and tell you what it is when we confirm your order. Please use the customer number whenever you contact us.
1.7 We only operate in the UK. Our Website and marketing materials are solely for the promotion of our Services in the UK.
1.8 Credit checks and our credit assessment of you. We may carry out credit checks where necessary to help us identify and decide whether to accept your order. The credit check will include looking at the details you have given us and registering and checking your information with credit reference agencies and fraud prevention agencies who may also check the details of anyone you are financially associated with. By placing an order, you agree that we may conduct these checks and also register information about you and the conduct of your account with any credit reference agency.
If our credit assessment of you does not meet our normal requirements then we may require you to make a deposit with us or we may refuse to provide you with the Services. For the purpose of fraud prevention, debt collection, credit management and emergency services purposes, information about you and the conduct of your account may be disclosed to credit reference agencies, debt collection agencies, fraud prevention agencies, security agencies, financial institutions, emergency services organisations or other telecommunications companies. For the same reason we may also perform subsequent credit checks
whilst you retain a financial obligation with us.
2. Service Installation & Activation
2.1 Consents and Permissions. If you are the freehold owner of the Site, you agree to allow us to access your Site to enable us to provide the Services. You will also be responsible for obtaining any other licences, consents and permissions required to enable us to install, activate, inspect, maintain, alter, repair or otherwise provide the Services to you under the Contract. If you are a tenant of the Site, you must have consent from the freehold owner, landlord, and/or agent managing the Site and you must procure that the freehold owner, landlord, and/or agent managing the Site obtains any other licences, consents and permissions required to enable us to install, activate, inspect, maintain, alter, repair or otherwise provide the Services to you under the Contract. If you are a tenant, please let us know. We may require you (and any freehold owner, landlord and/or agent managing the Site) to enter into an additional agreement with us to provide us with the necessary permissions and access rights to the Site to provide the Services.
By ordering the Services from us, you are confirming that you or any applicable third party have obtained any licences, consents and permissions necessary for us to provide the Services at the Site and you acknowledge that we are relying on this confirmation in providing the Services to you. You acknowledge that if you or any applicable third party fail to obtain and maintain all of the relevant licences, consents and permissions then we will not be obliged to provide the Services at the Site, we may terminate this Contract in accordance with clause 11.1(n) and, in addition to the compensation as set out in clause 11.2, we will be entitled to recover from you any costs, expenses and other liabilities that we may incur as a result of or in relation to any claims brought against us and/or damages sought as a result of your or any applicable third party's failure to obtain any such licences, consents and/or permissions.
2.2 Installation and Activation Charges. Any installation charge payable by you shall be communicated to you in advance and will be as set out in the Initial Order Confirmation (“Installation Charge”). Before advising you of your Installation Charge, it may be necessary to undertake an on-site survey. In addition, an activation charge will be charged (such amount as set out in the Price List or as otherwise advised by us and set out in your Order Confirmation).
2.3 Arranging the network installation. If and when the connection point outside your Site is live, we will notify you in writing and agree the date when one of our installation engineers will attend your Site to install and configure the equipment you need to use our Services. All installations will be undertaken on a working day. All installation engineers work to our agreed standards, using approved equipment.
2.4 Preparation of the Site. You shall, prior to installation and at your own expense:
(a) ensure that the Site is prepared in accordance with any instructions provided by us;
(b) obtain all necessary licences, consents and regulatory approvals required for installation and use of our equipment at the Site, including in respect of any alterations required to the Site;
(c) provide us in a timely manner such access to the Site as may be required to plan the installation of our equipment;
(d) provide a suitable and safe working environment in accordance with applicable installation standards and applicable laws and regulations;
(e) provide any electricity and telecommunication connection points required by us;
(f) provide any openings in buildings required to connect our equipment to appropriate telecommunications facilities; and
(g) provide internal cabling between our equipment and any of your equipment, as appropriate.
If you fail to comply with this clause 2.4 then, without prejudice to the other rights we have under this Contract, we have the right to cancel the installation and charge an Install Cancellation Fee.
2.5 Access to the Site and authority to complete the installation. You agree to allow us to access the Site at the time(s) agreed between us to conduct the installation, in order to install and activate the Services and to otherwise provide the Services to you. During the installation you must ensure that, at all times, a person is present with the necessary authority and knowledge to enable the engineer to carry out the installation. If you fail to comply with this clause 2.5 then, without prejudice to the other rights we have under this Contract, we have the right to cancel the installation and charge an Install Cancellation Fee.
2.6 If you cancel your appointment. If you cancel an installation appointment less than 24 hours before the scheduled appointment time then, without prejudice to any other rights we may have under this Contract, we may charge an Install Cancellation Fee.
2.7 If you have additional requirements before we commence work. The installation route and equipment location will be agreed between us in advance of us sending the Order Confirmation to you. If, after agreeing the route and equipment location, you have additional requirements which alters the agreed installation route and/or the equipment location and this makes your installation more costly, this may impact the Installation Charge. In such instance we will discuss and agree with you how to proceed and any additional charges which may apply. Where we cannot agree how to proceed and/or any charges that apply we may terminate this Contract (in accordance with clause 11.1(d) below).
2.8 If problems arise during the installation. The installation engineer will use reasonable endeavours to complete your installation during your scheduled appointment. However, if it is not possible to complete the installation through no fault of the installation engineer (e.g. because of safety issues or unforeseen complexity as a result of things such as asbestos, concealed electrical cabling or anything else not visible to us on inspection), the installation engineer will inform us. In such circumstances we may charge you, over and above the Installation Charge, reasonable costs incurred by us in connection your installation (to include further engineer call out time, as per the Price List). If you do not wish to proceed with a further appointment to complete the installation, you or we may terminate this Contract and we may charge you reasonable compensation for any costs we may have incurred trying to complete the installation (including any engineer call out time, as per the Price List).
2.9 Activation Date. Once your order is confirmed and the Services are installed (if applicable) we will activate your Services.
3. Customer Premises Equipment (“CPE”)
3.1 For the purposes of this clause 3, the “Demarcation Point” means an ethernet port on a CPE of our choice that we deem appropriate to deliver the Services ordered. If we supply a router then the Demarcation Point is the ethernet port of our router (when connected to our Services), otherwise it is the ethernet port of the optical network terminal. We shall only provide Services under this Contract up to the Demarcation Point. You shall be responsible for the installation, maintenance and support of all hardware located beyond the Demarcation Point. You are responsible for your equipment in accordance with clause 5.5.
3.2 All Broadband Services and DIA Services include the provision by us of CPE of our choice that we deem appropriate to deliver the Services ordered. We reserve the right to substitute any CPE as required based on availability of hardware from our suppliers.
3.3 Configuration of any router owned by you is outside the scope of the Services.
4. Our charges and your payments
4.1 How we calculate, and how you pay, our charges. The Monthly Charges you pay for our Services depends on the Services you have ordered and will be as shown in your Order Confirmation (as may be amended from time to time in accordance with this Contract). Any installation, activation or other upfront charges will also be as set out in your Order Confirmation and will be charged as an additional upfront payment. Any other charges which may be payable under the Contract (such as engineer call out charges) will be as set out in the Price List.
Where payments are taken by direct debit, your first payment will be taken within 5 working days after the Activation Date and on the same day of each month thereafter (or the next working day if the relevant day is a non-working day).
Where payments are made by you by any means other than direct debit, each such payment must be made by the date falling 30 days after the date of the relevant invoice (or any other date specified on the invoice).
Unless otherwise stated in your Order Confirmation, you will pay for all Services monthly in advance. The charges for some of our Services may be payable in arrears but we will notify you if this is the case at the time. Payments must be made by direct debit or such other payment method as may be noted on your invoice.
4.2 Price changes. We may increase our Monthly Charges once each year with effect from the date (if any) specified in our Price List to reflect any percentage increase in the Retail Prices Index published by the Office for National Statistics during the previous 12 months (and any such adjustment shall not amount to a change which “significantly disadvantages” you for the purposes of clause 9.2 below, whether or not you are still within any Minimum Term). In addition, we may review any of our charges (including our Monthly Charges) at any time and change our pricing in accordance with clause 9 below.
4.3 Changes, Additional Services, Upgrades and Regrades. If you decide to change your Services in accordance with the terms of this Contract, we will tell you what your new charges will be and ask you to confirm that you accept those (see Clause 9.1 below).
4.4 VAT. Unless otherwise expressly stated, all sums payable by you under this Contract are exclusive of VAT, and you shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice.
4.5 3rd party charges. We are not responsible or liable for any 3rd party charges from other organisations (such as 3rd party telephone or content providers) which you may incur while using the Services.
4.6 Interest on late payments. Without affecting our rights set out in this Contract (including in clause 7.3 and/or clause 11.1(b) below), if you do not make any payment to us by the due date, we may charge interest to you on the overdue amount at the rate of 8% a year above the base lending rate of the Bank of England from time to time or at the maximum rate permitted by applicable law from time to time (whichever is less), together with any reasonable costs incurred by us in collecting such overdue amount. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
4.7 No right of set-off. You must pay all amounts due to us under these terms in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.8 What to do if you think we have made a mistake in our charges. If you think an invoice is wrong, please contact us promptly, and in any event within 14 days of the date of the invoice, to let us know and we will not charge you interest until we have resolved the issue. Once the dispute is resolved, we may charge you interest on correctly invoiced sums from the date the dispute is resolved until the date of actual payment.
5. Use of the Services and equipment
5.1 Your obligations. Without prejudice to any other obligations imposed on you under this Contract, you shall:
(a) inform us of all health and safety and security requirements that apply at the Site;
(b) comply with our reasonable requests that are necessary for the reasons of health and safety, environment, sustainability, security or quality or performance of any Services;
(c) upon reasonable notice from us, allow us access to the Site as may be reasonably necessary for the performance by us of our obligations under this Contract, including the installation or maintenance of our equipment and the recovery or removal of any of our equipment;
(d) comply with, and ensure the Users comply with, our Acceptable Use Policy (available on our Website or from our Business Support Team) when using our Services; and
(e) use, and ensure the Users use, the Services in compliance with (i) all applicable laws and regulations; (ii) the terms of this Contract; and (ii) our reasonable instructions, guidelines and directions;
(f) be responsible for:
i. access to and use of the Services by any User;
ii. all fees payable to us incurred in connection with the Services; and
iii. compliance with this Contract by the Users;
(g) following a request from us, ensure that your list of permitted Users is kept current, and that you terminate access immediately for anyone who is no longer a permitted User; and
(h) comply with the provisions of any software and/or third-party software licences provided with or as part of the Service or otherwise notified to you by us from time to time.
5.2 Monitoring the Services. You agree that we may intermittently monitor your use of our Services including data volume and type of traffic (whether authorised by statute or other legislation or otherwise) to ensure lawful use and to assist our traffic management. If you use the Services improperly, negligently or in a way which interferes with other customers’ use of the Services, we may exercise our right to suspend your use of our Services or terminate this Contract. We may immediately remove any material placed on our servers by you or other users which breaches this Contract or is otherwise harmful to our interests or the interests of our other customers.
5.3 Indemnity. You agree that you are responsible for all access to and use of the Services under this Contract, including by Users, whether you gave your permission or not. You shall indemnify and keep us indemnified against any claims, losses, damages, costs, expenses and liabilities (including legal fees) arising from any claims by any third party in connection with the use of the Services (including the misuse of the Services in breach of clause 5.1 or clause 5.2).
5.4 Our Equipment.
(a) Part of the network will run from the boundary of the Site, across your private land and into your premises, up to and including the router we may provide. Any equipment we supply to you or install in your premises (or otherwise on the Site) to connect you to our Services remains our property. You are responsible for maintaining any and all of the equipment we supply to you in good order and in accordance with any instructions that we provide to you. You must not sell it, give it away or use it as security for a loan. You should also ensure that you are aware of the installation route of the network apparatus across the Site and draw this to the attention of any third-party doing work on the Site.
(b) If you report a fault which we trace within the Site, we will make an appointment to carry out repairs or replace our faulty equipment free of charge but if, in the reasonable opinion of the engineer, the fault was caused by damage to our equipment or the network apparatus not caused by us (or the fault was a result of your own set up, as opposed to faulty equipment), then a charge may be made in accordance with our Price List (and we may charge for both engineer call out time and any equipment). We may also charge you in the event that you fail to keep an agreed appointment (unless you give us at least 24 hours’ notice) (such charge to be in accordance with the Price List).
(c) If you or we terminate this Contract then, unless we waive our right to receive the same in writing, any equipment we supply to you to connect the Services must be returned to us in good working order at your cost. If you fail to return any such equipment, or return the equipment in a damaged condition, we may charge you for the cost of any such equipment, at the price set out in our Price List.
5.5 Your Equipment. You are responsible for the provision, installation, configuration, monitoring and maintenance of any of your equipment connected to the Services. You shall ensure that any of your equipment connected to or used with the Services is connected and used in accordance with any instructions and safety and security procedures applicable to the use of that equipment. You shall ensure that any of your equipment attached (directly or indirectly) to the Services by you is technically compatible with the Services and approved for that purpose under any applicable laws and regulations. We do not make any commitment with respect to the interoperability between the Services and your equipment.
5.6 Our rights under the Communications Act 2003. You agree that, at our request, some or all of our equipment placed on the Site may remain, including the internal network termination point, irrespective of whether you or any subsequent owner or tenant enters into any subsequent contract with us for services. You should ensure that any future purchaser or tenant is made aware that the Site is connected to our network and the location of our equipment.
5.7 Provision of information. You agree to provide us with any information that we may require in order to provide the Services to you. We will not be responsible for supplying the Services late or not supplying any part of them if this is caused by you not giving us the information we need within a reasonable time of us asking for it.
6. Our obligations
6.1 We cannot (and do not) guarantee fault-free performance. We will use our reasonable endeavours to provide the Services in accordance with the applicable delivery speeds set out on our Website (or in any applicable Service Level Agreement). However, due to the shared use of networks and factors outside our control such as access to 3rd party content and services, your internet access availability and speed may vary from time to time. In addition, the speed and limitations of Wi-Fi (e.g. your router position, wall thickness, device capability etc) may affect the actual speed that you experience. In larger, or certain types of, buildings, additional equipment may be required to ensure this bandwidth is available as a Wi-Fi signal throughout the building. This additional equipment may be supplied by us as a service either on the date of the initial order or at a later date. We are not responsible for any reduction in speed caused by your own devices or equipment, for example antivirus software causing slow speeds on a computer or phone. If you are consistently receiving slower speeds than your subscription allows, please contact our Business Support Team (see “How to contact us” above for details on how to get in touch). Alternatively, in the event the Services include a Service Level Agreement, you will be required to notify us of any faults or service failures using the method set out in the Service Level Agreement.
6.2 Our Services. We aim to carry out our Services for you with reasonable skill and care. However, we cannot guarantee that our Services will be available at all times, error free and/or without minor defects. You also acknowledge and agree that time shall not be of the essence in respect of any dates or timescales for the performance of our obligations.
6.3 Compliance with laws. We will comply with all applicable laws, regulations and codes of practice when providing the Services to you.
6.4 Service Level Agreement. Your Order Confirmation will set out any SLAs which apply to your Contract. Unless your Order Confirmation includes a confirmation that an SLA applies to your Contract, then no SLA will apply (notwithstanding the fact that there may be one or more SLAs on our Website from time to time). Where an SLA does apply to this Contract, then any remedies contained in that SLA shall be the sole and exclusive remedies for any failure to meet the performance obligations under that SLA.
7. Suspending the Services
7.1 Your rights if we suspend the supply of Services to you through no fault of your own.
We are entitled to suspend the supply of your Services:
(a) to deal with technical problems or make minor technical changes;
(b) to update the Services to reflect changes in relevant laws and regulatory requirements;
(c) to make changes to the Services as requested by you or notified by us to you (see clause 9); and/or
(d) to carry out planned maintenance.
7.2 Where we suspend your Services under clause 7.1, we will do our best to ensure that necessary maintenance and support work is carried out overnight and we will use reasonable endeavours to provide at least 5 working days' notice to you (see “How we may contact you” above) prior to such work being carried out, although this may not always be possible if the problem is urgent or an emergency (in which case we will use reasonable endeavours to provide you with as much notice as reasonably possible).
7.3 Reasons we may suspend the supply of Services to you because of your actions.
We are entitled to suspend the supply of your Services:
(a) if you materially breach any term of this Contract;
(b) if you fail to pay any amount due under this Contract on the due date for payment;
(c) if you (or any User) use our network or Services in breach of our Acceptable Use Policy or if you (or any User) use the Services improperly, negligently or in a way which interferes with other customers’ use of the Services;
(d) if we suspect that a fraudulent act is being, or may be, made in respect of the Services by you (or any User);
(e) if we observe a pattern of unusual usage of the Services which we suspect may indicate potential fraud; and/or
(f) if you breach any laws which apply to your use of our network.
7.4 If we suspend the Services under clause 7.3 you must still pay for the Services during the period of suspension and we may charge you for re-activating your Services at the end of the period of suspension (such fee as specified in the Price List).
7.5 Loss due to suspension. We do not accept any responsibility for any loss you suffer from suspension.
8. Our responsibilities and limitation of liability
8.1 Nothing in these terms shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) any other matter in respect of which it would be unlawful for us to exclude or restrict liability.
8.2 Exclusion of Warranties. We have given commitments as to compliance of the Services with relevant specifications in clause 6 and, where applicable, in any Service Level Agreement. All other conditions, warranties or other terms that might be implied into or incorporated into this Contract whether by statute, common law or otherwise, are hereby excluded to the extent permitted by law. In particular the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Contract.
8.3 Limitation of Liability. Subject to clause 8.1:
(a) we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, loss of opportunity, the cost of procuring replacement services, other economic and financial losses and/or any special, indirect or consequential loss or damage whatsoever arising under or in connection with any contract between us; and
(b) our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total Monthly Charges paid by you in the preceding 12 months, provided, however, that any remedies contained in the Service Level Agreement shall be the sole and exclusive remedies for any failure to meet the performance obligations under that Service Level Agreement.
8.4 You are responsible for your own equipment. We are not responsible if you are not able to use the Services because your equipment (for example, any PC, mobile device, network interface card, printer, switch, local area network or other equipment) does not work properly with our Services or because of faults in any 3rd party networks over which we have no responsibility. We are not responsible for any loss or damage to your own equipment caused by the use of our Services to access the internet.
8.5 We are not responsible for information passing over our network. We have no control over the data which passes to you or from you over the internet, and we are not responsible for any loss or damage to that data. We exclude all liability of any kind in respect of any data, information, video, graphics, sound, music, photographs, software and any other materials published or otherwise made available by you or on your behalf by using the Service and any other material on the internet which can be accessed using the Service. We are not responsible in any way for any goods (including software) or services provided by third parties and advertised, sold or otherwise made available by means of the Services or on the internet.
8.6 We are not responsible for the acts of third parties. We are not liable to you either in contract, tort (including negligence) or otherwise for the acts or omissions of other suppliers of telecommunications or internet services (including domain name registration authorities) or for faults or failures of their equipment.
8.7 Force Majeure. We are not responsible to you for any delay, failure, damage or loss caused by events or circumstances beyond our reasonable control such as (a) acts of God, inclement weather, storm, flood drought, lightning or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil commotion or riots, war or armed conflict (actual or threatened); (d) contamination (including chemical or biological); (e) loss or disturbance or shortage of electricity, power or telecommunications services, connections or cables; (f) shortages of materials or equipment; (g) failures or delays within our supply chain (not caused by us); (h) collapse of structures or blockages; (i) fire, explosion or accident; (j) any labour or trade dispute, strikes, industrial action or lockouts; and/or (k) any change in law or action taken by a government or public authority, including embargoes.
9. Variation to our Contract
9.1 Requesting changes. If you wish to make a change to the Services you have ordered (which includes ordering Additional Services or upgrading or downgrading your Services) please contact us via our Business Support Team (see “How to contact us” above for details on how to get in touch). We will let you know if the change is possible. If possible, we will let you know about any changes to the price of the Services, the timing of supply or anything else which would be necessary as a result of your requested change, including any changes to the terms of this Contract, and ask you to confirm whether you wish to go ahead with the change. Our acceptance of that change will take place when we email your Change Order Confirmation to you.
9.2 Our right to make changes. We may from time to time make changes to your Contract. We will make changes which we believe are minor and/or administrative by updating the Contract on the Website from time to time. You should check our Website from time to time to take note of any such changes as they are legally binding on you.
If we make any changes to your Contract other than changes that are minor and/or administrative we will, in addition to updating the Contract on the Website, contact you to notify you of such change (such notice to be provided by one of the methods set out in “How we may contact you” above).
Where any such change is likely to significantly disadvantage you, we will contact you at least 30 days in advance to notify you of such change (such notice to be provided by one of the methods set out in “How we may contact you” above). From the date that we notify you of a change which is likely to significantly disadvantage you, you will have 30 days to cancel your Contract.
10. Your rights to terminate the Contract
10.1 Terminating the Contract because of something we have done or are going to do. If you are terminating the Contract for a reason set out in paragraphs (a) to (d) below the Contract will end with immediate effect and we will refund you in full for any Services which have been paid for but have not been provided (if applicable):
(a) we are making a change to the Contract in a way that is likely to significantly disadvantage you, and you exercise your right to cancel under clause 9.2 above;
(b) we have made an error in the price or description of the Services you have ordered, and you do not wish to proceed;
(c) we have suspended supply of the Services for technical reasons, or notify you we are going to suspend them for technical reasons, in each case for a period of more than 5 consecutive working days; or
(d) we have materially breached the Contract and the breach is incapable of remedy, or (if such breach is remediable) we have failed to remedy that breach within a period of 15 days after being notified in writing to do so.
10.2 Terminating the Contract where circumstances in clause 10.1 do not apply. You may also terminate your Contract by giving us notice in writing in the circumstances set out in, and in accordance with, clause 2.8 above.
10.3 Terminating the Contract where circumstances in clauses 10.1 or 10.2 do not apply. You may terminate your Contract at any time by giving us 30 days' notice in writing. However, where the termination will take effect during any Minimum Term, we are entitled to charge you an Early Termination Charge (unless you are terminating for a reason set out in clause 10.1 or 10.2 above).
Where payments for Services are taken by direct debit, we will also take a payment under this clause 10.3 by direct debit. By entering into this Contract, you are authorising us take this direct debit payment.
11. Our rights to terminate the Contract
11.1 Our rights to terminate the Contract. Without affecting any other right or remedy available to us, we may terminate this Contract at any time by writing to you if, where applicable:
(a) you have materially breached any term of the Contract and the breach is incapable of remedy, or (if such breach is remediable) you have failed to remedy that breach within a period of 15 days (or within such other period as notified by us) after being notified in writing to do so;
(b) you fail to pay any amount due under this Contract on the due date for payment, and you still do not make the payment within 10 days of us reminding you that payment is due or, if applicable, you cancel your direct debit;
(c) you (or any User) use our network in breach of our Acceptable Use Policy or if you (or any User) use the Services improperly, negligently or in a way which interferes with other customers’ use of the Services;
(d) in the circumstances contemplated in, and in accordance with, clause 2.7 above;
(e) other than in relation to a solvent restructuring, an order is made, petition presented or notice given in respect of your administration, provisional liquidation or winding up (whether voluntarily or by order of the court); a receiver is appointed or could be appointed by any person over the whole or any part of your assets or a composition or arrangement between you and your creditors is proposed, approved or sanctioned;
(f) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under this Contract has been placed in jeopardy;
(g) you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business;
(h) you are subject to a change of control (as defined in section 1124 of the Corporation Tax Act 2010);
(i) we have a good reason to believe that any information you have given us is false or misleading;
(j) we suspect that a fraudulent act is being, or may be, made in respect of the Services by you (or any User);
(k) we observe a pattern of unusual usage of the Services which we suspect may indicate potential fraud;
(l) you (or any User) are abusive, threatening, behaves aggressively to or harasses any member of our staff, whether in person, by phone, by email or by any other communications method;
(m) you breach any laws which apply to your use of our network;
(n) any wayleave, consent or permission required in connection with this Contract is not, or ceases to be in, full force or effect for any reason (other than a wayleave obtained by us); and/or
(o) you (or any User) ceases to authorise us to collect or process personal data that is reasonably required by us in order to provide the Services or is otherwise required by law.
11.2 Consequences of termination. Without affecting any other right or remedy available to us at law or otherwise, if we terminate this Contract in the situations set out in clause 11.1 during any Minimum Term, we may charge an Early Termination Charge.
11.3 Our other rights to terminate the Contract. We may also end our Contract:
(a) at any time by writing to you if:
i. we cease to be authorised to provide the Services, or if our authorisation to provide the Services is revoked or modified in any way which as a material impact on our ability to provide any part of the Services; or
ii. we decide to stop providing the Services (or if we decide to stop providing the particular Service that you have purchased); or
iii. any wayleave, consent or permission obtained by us in connection with this Contract ceases to be in full force or effect for any reason,
and, where reasonably possible, we will provide you with at least 30 days' notice before ending the Contract for these reasons and will refund any sums you have paid in advance for Services which will not be provided; or
(b) with immediate effect in the circumstances set out in, and in accordance with, clause 2.8 by writing to you.
12. Privacy & Data Protection
12.2 Please note that we may monitor and record phone conversations which you have with us so that we can shape our training and compliance.
13. Other important terms
13.1 Entire agreement. This Contract constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in this Contract and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
13.2 Variation. Except as set out in these terms, no variation of this Contract shall be effective unless it is agreed in writing by the parties (or their authorised representatives).
13.3 Notices. Any notice given to you or us under or in connection with this Contract shall be in writing.
13.4 Assignment. We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under this Contract. You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under this Contract without our prior written consent.
13.5 Third party rights. This Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. The rights of the parties to rescind or vary this Contract are not subject to the consent of any other person.
13.6 Severance. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.
13.7 Waiver. No failure or delay by us to exercise any of our rights or remedies under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.8 Governing law and jurisdiction. This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any such dispute or claim.
13.9 Complaints and alternative dispute resolution. If you are unhappy with our Services, please contact us and we will do our best to put things right. If you are a Small Business, please see our “Customer Complaints Policy” available on our Website or from our Business Support Team for more information about how we handle complaints and the Ombudsman service available. For these purpose a “Small Business” means a business for which no more than 10 individuals work (whether as employees or volunteers or otherwise) (and for the avoidance of doubt the Customer Complaints Policy only applies to Small Businesses).