Terms of Service
All references to we, us or our (or similar expressions) will be to Access Broadband Limited.
All references in this Agreement to you, your or yours (or similar expressions) will be to the above named Customer.
All references to ‘Agreement’ will mean the front sheet and the terms below.
Applicability of Agreement
(1) This Agreement is the sole agreement between us in respect of the matters referred to herein and applies to the exclusion of any other terms or conditions, or any previous arrangements, agreements, discussions, or otherwise, unless one of our directors otherwise confirms in writing.
Suitability and personal nature of Services
(2) By entering into this Agreement you confirm that you have fully satisfied yourself that the Services are suitable for your requirements and we make no representations and give no warranties in respect thereof. You acknowledge that the Services are personal to you and may not be shared, licensed, sub contracted, or otherwise, with any other person.
Installation, Continuing Access and Information
(3) Provided that the installation fee and first months payment been paid in full in accordance with paragraph 9 below, we will install the Equipment at the Property on such date as we agree with you (at such location within the Property as we have previously notified to you, or as near as possible thereto). If we are subsequently unable to effect the installation on the agreed date, we will notify you as quickly as possible and arrange an alternative date with you. If as a result of your acts or omissions we are unable to install (or complete the installation of) the Equipment on the date that we have agreed we may need to make an additional charge for installing it, which will be as notified to you.
(4) For the avoidance of any doubt, notwithstanding any other provision of this Agreement, the Equipment will remain our property for the duration of the 24 month contract at which time the ownership is transferred to the customer and in this regard your attention is specifically brought to paragraph 20 below.
(5) You will permit us appropriate access to install the Equipment on the agreed date and we will complete the installation with reasonable care and attention and in accordance with any reasonable health, safety and security policies that you have notified to us before entering into this Agreement and which we have agreed to. If any damage is caused to the Property as a result of our breach of this paragraph we will endeavour to rectify the same to your reasonable satisfaction.
(6) It is your responsibility to ensure that all necessary and appropriate authorities, licences and consents have been obtained and complied with in order to allow us to install the Equipment, before we commence its installation and it is your responsibility to ensure that it is safe for our representative to install the Equipment. You will indemnify and hold us harmless and keep us indemnified and held harmless against any claim by any third party in respect of our installation of the Equipment.
(7) On completion of the installation we will test the Equipment to check that it is operational. Upon completion of such testing to our reasonable satisfaction and to the reasonable satisfaction of your representative as specified in the front sheet, your representative will be required to sign a confirmation of acceptance. Following such acceptance, we will not be required to provide any further services or equipment, unless specifically referred to in this Agreement or as we may from time to time expressly agree. Following the installation you will permit our representative to take photographs of the area around the installation to verify whether any damage has been caused by the installation.
(8) You will from time to time promptly provide us with such information and assistance as we shall reasonably require in connection with the Equipment and the Services, including granting us access to the Equipment from time to time during office hours and on reasonable notice to check, maintain, repair, service or replace the same (or any part thereof) as we think fit and whilst we will endeavour to minimise any disruption caused to you by the above we will accept no responsibility therefore.
(9) Access Broadband’s policy towards Fair Usage is that customers should be able to use the service in an appropriate manner to meet their needs. A very small number of customers use an excessive amount of the network bandwidth at peak times, to the extent it can impair the performance for others. For this reason we have a fair usage policy designed to ensure your service stays fast and reliable 24 hours a day – it involves monitoring the amount customers download and managing non-time critical traffic on the network, such as Peer-to-Peer sharing. If a customer’s usage is continually excessive, unfair, affects other users enjoyment of our broadband service, or is not consistent with the usage we would typically expect on that customer’s current package, we reserve the right to upgrade customers to a package more suited for their usage. In extreme cases we may suspend or terminate the customer’s ability to access Access Broadband’s service.
(10) The Fee will be payable in full in cleared funds at the time that you enter into this Agreement and in any case before we install the Equipment as referred to in paragraph 3 above.
(11) Unless otherwise, specified any fees referred to in this Agreement will be exclusive of VAT at the then applicable rate.
(12) At any time during the period of 30 days of the completion of the installation as referred to in paragraph 6 above, you may terminate this Agreement for any reason whatsoever, by giving us notice in accordance with paragraph 27 below, and having permitted us to first remove the Equipment, you will be entitled to a full refund of the Fee.
Continuity of Services and Refund
(13) Owing to the nature of broadband services and the fact that we are reliant on third parties to provide the Services to us, we are unable to guarantee that the Services will be continuous or fault-free. Without limitation, the quality or availability of the Services may be affected from time to time by the failure of third parties, local geography, topography, atmospheric conditions and other physical or electromagnetic obstructions or interference, the number of people trying to access the network at any time and faults in other networks. In the light of the above we recommend that you not rely solely on the Services for important services and implement an appropriate contingency plan to cover situations where there is a lapse in the Services.
(14) We shall not be liable for any suspension of, or variation to, the Services, or any part thereof, (not being a suspension or variation which is as a result of our own default) which is imposed on us by any third party service provider, as a result of changes imposed by their third party suppliers, any regulatory or legislative change, the direction of any competent authority or body, or relates to any similar matter. We shall not be liable for any suspension of the Services or any part thereof as a result of the suspension of any service provided to us by any third party provider as a result of any technical failure, modification or maintenance of the communications network or following the instruction of any emergency services or regulatory or government or other competent body.
(15) If there is a failure or breakdown in the Services for a period exceeding seven days (which will include either failure or breakdown throughout the relevant period, or intermittent failure or breakdown throughout the relevant period) you will be entitled to a refund of the Fee in respect of the period of failure or breakdown as referred to above which continues beyond the said seven day period (on the basis of a daily rate calculated by dividing the amount of the Fee by 365). If the failure or breakdown continues for a period exceeding fourteen days, you will be entitled to terminate this Agreement, and having first permitted us to remove the Equipment, to a refund of the Fee relating to the period from the said fourteenth day to the end of the Agreement Term (on the basis of a daily rate calculated by dividing the amount of the Fee by 365).
Password and use of Equipment and Services
(16) On the installation of the Equipment you will be supplied with a password or similar to enable you to use it (and you may be supplied by us with replacements from time to time) (to be known as the Password). The Password is confidential and must not be disclosed to any person other than persons employed by you who have a strict need to know the same.
(17) During the Agreement Term you shall, and shall procure that any person to whom you have disclosed the Password or who otherwise uses or benefits from the Equipment and/or the Services, shall:
a. keep the Password strictly confidential at all times and not disclose it to any person other than as expressly referred to above without our prior written consent;
b. not use, nor knowingly allow the Equipment or Services to be used (in our opinion):
c. for any unlawful or improper purpose or in such a manner that will or may impair the operation of the Equipment or the Services, the communications network or our provision of equipment or services to other users;
d. in any way which causes annoyance, inconvenience or anxiety, whether as set out in any applicable legislation or otherwise;
e. for sending unsolicited communications without reasonable cause;
f. to send, store, communicate or knowingly receive content which is abusive, indecent, defamatory, obscene, menacing, unlawful or a nuisance; or
g. in any way that breaches our intellectual property rights or those of any third party.
(18) The Services enable access to the internet, use of which is solely at your risk. We have no control over and are not responsible or liable in any way for any content offered by third parties on or through the Services. You agree that you retain exclusive responsibility for, and control of, content which is sent or passes over the communications network.
(19) Whilst our representative will confirm on installation that the equipment and software then used by you is compatible with the Equipment and the Services, before replacing and/or modifying the same (or any part thereof) in any way, you should first check with us that they will remain compatible. We will accept no liability for any failure in the Equipment and/or the Services through your use of equipment and/or software that we have not previously confirmed in writing is compatible.
Ownership, care of the Equipment and Insurance
(20) The Equipment will remain our property at all times for the duration of the 24 month contract at which time the ownership is transferred to the customer. You will not claim or assert any right therein or attempt to do so and where the Equipment is affixed or attached to the Property (or to any other property or building), which is not wholly owned by you, you will supply to us on demand such form of waiver or acknowledgment as we require from such person as we direct irrevocably confirming that they have no rights in the Equipment.
(21) You will indemnify and hold us harmless and keep us indemnified and held harmless against any claim by any person in respect of our removal of the Equipment.
(22) You must inform us immediately you become aware of the loss, theft or damage of the Equipment
(23) You will at all times use and procure that all other persons use the Equipment in accordance with such instructions as we issue from time to time.
(24) You will take reasonable care of the Equipment and procure that all other persons take reasonable care of the Equipment at all times and ensure that the environment immediately around it is not significantly altered (whether by the presence of dust, or dirt, or the changing of temperature, or otherwise).
(25) You will not (and will procure that no other person shall) without our express prior consent, use the Equipment for any purpose other than the Services, or modify, repair, or attempt to repair, or open, or interfere or tamper with, directly or indirectly, in any way, the Equipment (or any part of it), or move the Equipment, or otherwise, and/or remove, or erase or cover any markings thereon, or put any other markings thereon.
(26) You will for the period from which the Equipment is installed to the period on which it is removed by us, at your own cost, insure, and keep insured, the Equipment against loss, damage, theft and such other risks as shall be commercially prudent, to a value of no less than the replacement value referred to on the front sheet attached hereto, and will on request supply to us a copy of the relevant insurance policy. If the Equipment is lost, damaged, stolen or otherwise, you will promptly claim under such insurance and remit to us any amount recovered under such policy in respect of the Equipment as soon as it is received, and if no amount is received or there is a shortfall between the amount received and the replacement value of the Equipment, pay us on demand an amount equal to the replacement value or the amount of the shortfall as the case may be. If the Equipment is damaged and in our opinion (acting reasonably) can be repaired at a cost of less than its replacement value, you will pay to us on demand such cost of repair. You shall maintain at your own cost insurance against public liability and other third party liability in connection with any injury (including death) loss or damage to any persons or property belonging to any third party arising out of or in connection with your use of the Services and the storage of the Equipment at the Property.
Termination and Expiry
(27) You may exercise the right to terminate this Agreement referred to in paragraph 11 above.
(28) This Agreement will expire at the end of the Agreement Term and unless you and we have previously agreed an extension thereof (at which time a revised Fee will become payable, unless we have agreed in writing that the Fee will remain the same), the provisions of paragraph 29 below will apply.
(29) Either we, or you, may terminate this Agreement forthwith during the Agreement Term if the other is in material or persistent breach of this Agreement, and where, if it is possible to remedy the relevant breach, the other has failed to do so within a period of 14 days of being requested to do so. Where we terminate this Agreement in accordance with this paragraph, you will not be entitled to a refund in respect of any part of the Fee which relates to the then remaining period of the Agreement Term.
(30) Upon termination (however caused) or expiry of this Agreement:
a. we shall no longer supply you with the Services; and
b, you must allow us to remove the Equipment within a period of 7 days, or such longer period as we shall agree. We will use reasonable efforts to minimise damage to the Property as a result of removal of the Equipment and will rectify any damage caused as a result of breach of this paragraph.
Limitation of our Liability
(31) Save as expressly set out in this Agreement, or to the extent that it is unlawful to exclude the same, all warranties, conditions and other terms, whether implied by statute, common law, custom, trade, course of dealing or otherwise, are excluded to the fullest extent permitted by law, including any implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
(32) Subject to paragraph 33 below:
a. we will have no liability whatsoever whether in contract or tort (including negligence), breach of statutory duty, or otherwise, for any loss (whether direct or indirect) of profit, business, contract, use, anticipated saving or revenue, goodwill, production, business interruption, wasted expenditure, any loss or corruption of data, or for any indirect or consequential loss or damage whatsoever arising in connection with all claims under or in respect of this Agreement; and
b. our total aggregate liability in respect of all or any claims arising under or in connection with this Agreement will be limited to £100,000.
(33) Nothing in this Agreement limits or excludes our liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation or for any other matter in respect of which liability cannot be lawfully limited or excluded.
(34) We will not be liable for any breach of this Agreement to the extent that our delay or failure to perform our obligations results from (a) a failure by you to perform your own obligations under this Agreement; or (b) the acts or omissions of other providers of telecommunication services including the providers of any services to us; or (c) the acts, defaults, omissions or negligence of third party suppliers or manufacturers.
(35) All intellectual property rights used by or subsisting in the Services and Equipment shall remain our sole property or (as the case may be) the relevant third party rights owner.
(36) Where intellectual property rights are created during or as a result of the supply of the Services and Equipment to you, these rights shall be owned by us or the third party rights owner as applicable.
(37) You must not:
a. do anything or allow anything to be done which might jeopardize our or our licensors’ intellectual property rights;
b. dispute or challenge our rights or the relevant third party rights owner; or
c. apply for, or obtain, registration of any trade or service mark in any country which consists of, or comprises of, or is confusingly similar to, our trademarks or our licensors.
(38) All legal notices given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service, to our address as specified in the front sheet, (where sent by you); or to your email address set out in the front sheet, or to your address set out in the front sheet, as we think fit, (where sent by us); or in either case to such other address or email address as has been notified in accordance with the provisions of this paragraph.
(39) All notices will be deemed served 48 hours after they are sent, or on earlier proof of delivery. Notices sent by email will be deemed served at the time of transmission.
(40) We shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of our obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond our reasonable control, we shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 14 days, you may terminate this Agreement on seven days’ written notice to us and, having first permitted us to remove the Equipment, will be entitled to a refund of the fee in respect of the period from the said 14th day to the end of the Agreement Term (on the basis of a daily rate calculated by dividing the amount of the fee by 365).
(41) Our failure or delay to exercise a right or remedy under this Agreement does not constitute a waiver of that right or remedy or a waiver of any other rights or remedies. No single or partial exercise or waiver of any right or remedy by us under this Agreement shall prevent any further exercise of the right or remedy.
(42) If any provision of this Agreement becomes void, illegal or unenforceable, the remainder of this Agreement shall remain in full force and effect and neither party shall be discharged from its remaining obligations. If any such invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted or modified, the parties shall negotiate in good faith to agree a replacement provision with the minimum modification necessary to achieve the same (or nearly as possible) commercial effect.
(43) A person who is not a party to this Agreement shall not have any rights under or in connection with it.
(44) You shall not assign, share, transfer, mortgage, charge, sub-contract or deal in any other manner with any of your rights and obligations under this Agreement without our prior written consent. We may novate or assign our rights under this Agreement as we think fit. You agree that you will within 14 days of a request from us enter into a deed of novation in terms we reasonably request to give effect to a novation under this clause.
(45) We may sub-contract any of our obligations under this Agreement as we think fit.
(46) You acknowledge that you have not been induced to enter into this Agreement in reliance upon any representation or other statement or promise of any nature whatsoever other than as expressly set out in this Agreement and, save as expressly set out in this Agreement, we shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
Law and Jurisdiction
(47) This Agreement is subject to English Law and the parties hereby submit to the exclusive jurisdiction of the English Courts.
(48) You will indemnify and hold harmless and keep indemnified and held harmless, us, our directors, employees, consultants and sub contractors against any claim, payment, demand, loss, damage, expense, fee, penalty, liability, or otherwise, suffered or incurred by us and/or any of them, as a result of your breach of any of the provisions of this Agreement.
If you have any questions regarding these terms of service. please send an email to info at access-broadband dot co dot uk