a. words importing the singular number shall include the plural and vice versa;
b. headings and titles in this Agreement are given for convenience only but do not form part of this Agreement and shall not affect its interpretation;
c. any references to a clause, or schedule is a reference to a clause of or to a schedule to this Agreement;
d. any reference to 'party' or 'parties' shall be interpreted as a reference to the parties to this Agreement;
e. any reference to any document in this Agreement and including this Agreement includes that document as from time to time varied, updated, supplemented or novated;
f. reference to any statute or statutory provision includes a reference to the statute or statutory provision as amended, extended, consolidated, replaced or re-enacted from time to time;
g. references to the Agreement shall, where the context so permits be construed to include a reference to all and any Attachments;
h. reference to 'writing' includes a reference to email, fax or comparable means of communication; and
i. any references to one gender includes all genders.
1.2. Any phrase in this Agreement introduced by the terms 'including', 'include', 'in particular' or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.3. This Agreement shall be binding on the parties, their successors and assigns.
1.4. In the event that a provision in an attachment, annex or letter agreement deviates from the Agreement, such attachment, annex or letter agreement will prevail only if such provision explicitly refers to the provision of the Agreement from which such deviation is intended.
1.5. The terms of this Agreement shall, save insofar as those terms may expressly be excluded, contradicted or varied by the terms of an applicable Side Agreement, be deemed incorporated into and govern that Side Agreement. If there is any conflict between the terms of this Agreement and those in any Side Agreement, the terms of the Side Agreement shall prevail.
1.6. Any error, omission or typographical error in any quotation, offer, sales information, invoice, or document supplied by Brighton Fibre shall be subject to correction on notice from Brighton Fibre and without liability.
2.1. The terms and conditions of this agreement are the only terms and conditions that will be binding upon Customer and Brighton Fibre and they (including the terms set out in any Side Agreement) shall apply to the exclusion of all other terms or conditions. No terms or conditions endorsed upon, delivered with or contained in any documentation received from the other party shall be binding on the other party. In the event that either party wishes to rely on any other terms and conditions, it hereby agrees that it shall draw to the other party's attention and seek written confirmation from such party of its agreement to such terms, conditions or variations which may conflict with of differ from this agreement. In the absence of such written confirmation from the other party any such terms, conditions or variations will be ineffective.
2.2. This Agreement sets forth the general terms of the contractual relationship between Brighton Fibre and Customer with respect to the provision of the Services. The provisions contained herein shall apply to any Attachments, annexes or any other documents referencing or amending this Agreement.
2.3. The Services to be provided by Brighton Fibre are defined and specified in the respective Attachments. In the event of a conflict of terms, the Services set out and conditions contained in a respective Attachment shall take precedence over the Agreement. In the event the Attachment is silent the Agreement shall take precedence.
2.4. Save as expressly stated to the contrary in this Agreement each Attachment shall be a separate agreement for the purchase of the Services referred to in it. Accordingly any sums payable pursuant to or in respect of any applicable Attachment shall be calculated, assessed and paid independently of, and without regard to, any other Attachment.
3.1. This Agreement shall commence on the date on which the Customer registered a Brighton Fibre account and shall remain in force and effective and shall not expire or be terminated separately as long as at least one subscription is still effective and/or one service is being provided.
4.1. In consideration of payment of the Charges, Brighton Fibre shall provide the Goods and Services to Customer during the Term in accordance with the relevant Attachment and all the terms and conditions set out in this Agreement.
4.2. Customer shall not incur nor purport to incur any liability on behalf of Brighton Fibre;
4.3. Brighton Fibre responsibilities and obligations:
4.3.1. Brighton Fibre shall maintain equipment suitable for providing a a broadband service;
4.3.2. Brighton Fibre shall provide the Customer with reasonable technical and sales support, which Brighton Fibre in its sole discretion shall consider necessary and appropriate; and
4.3.3. Brighton Fibre may from time to time make changes to equipment used to provide the service. Such changes are at the sole discretion of Brighton Fibre, and may be made without prior consent from the Customer.
4.4. Customer responsibilities and obligations:
4.4.1. The Customer shall ensure that Services provided are not used for any unlawful purpose whatsoever including the transmission or offering of any information or Services which are unlawful, abusive, harmful, threatening, defamatory, or which in any way infringe copyright, intellectual property rights, trademarks, or which is pornographic, or any other material that may cause offence in any way;
4.4.2. The Customer shall co-operate with Brighton Fibre in relation to any complaints, enquiries or investigations regarding services offered by the Customer. The Customer shall, at the discretion of Brighton Fibre, without limitation bear in full any costs associated with such complaints, investigations, or enquiries or any action whether or not brought by or against Brighton Fibre;
4.4.3. The Customer shall ensure that any third party using its facilities shall be bound by the terms of this Agreement; and
4.4.4. The Customer is responsible for ensuring that no third party intellectual property right is infringed by its choice of telephone number for a particular service and indemnifies Brighton Fibre against all costs and liabilities arising out of a breach or allegation of a breach of any such third party's intellectual property rights.
5.1. Except where otherwise expressly stipulated in the Agreement the following provisions set out both parties entire liability (including liability for the acts and omissions of it's employees, agents, and subcontractors) in respect of any delay or default in the provision of the Services and any representations statements or tortious acts or omissions including negligence arising under or in connection therewith.
5.2. Neither party will be liable for loss of profits, business, goodwill, anticipated savings or any type of special, indirect or consequential loss.
5.3. The provisions of this condition shall apply notwithstanding termination or expiry of the Agreement.
5.4. Brighton Fibre shall not be liable for any indirect, incidental, special or consequential damages or for interrupted communications, lost data, or loss of profit, or economic loss arising out of or in connection with this Agreement and in particular shall not be liable for any delay in rectification of any such problem.
5.5. Brighton Fibre shall not be liable for negligence except for death or personal injury caused by its negligence or that of its officers or employees.
5.6. Except as otherwise stated the Customer's only remedies for any breach of this agreement, shall at Brighton Fibre's sole discretion be:
5.6.1. Correction in a reasonable timescale of any fault; or
5.6.2. Replacement of service supplied.
5.7. Direct damages caused as a result of Brighton Fibre's breaches of this Agreement shall in any event be limited to the previous one (1) months revenue generated by the Customer, and received by Brighton Fibre, but in no event shall exceed £1,000 for any one event or series of events.
5.8. Brighton Fibre shall not be liable for any interruption, delay or failure in service resulting from any Force Majeure event as detailed in Definitions clause.
5.9. Brighton Fibre shall have no liability to the Customer in respect of any demand or claim where:
5.9.1. The demand or claim arises as a result of the Customer's negligence, misconduct or breach of this Agreement;
5.9.2. If the Customer does not immediately notify Brighton Fibre of any claim; or
5.9.3. If the Customer does not give Brighton Fibre full authority to deal with the claim, or does not provide all information requested by Brighton Fibre and complete and proper co-operation for Brighton Fibre to defend the claim.
6.1. Without prejudice to any other indemnity referred to in this or any other Agreement, the Customer agrees to indemnify Brighton Fibre and its parent, subsidiaries, affiliates, officers and employees against any claim or demand, including any made by a third party, arising out of the Customer's or End User's use of the service and all costs relating thereto. The Customer agrees not to hold Brighton Fibre and its parent, subsidiaries, affiliates, officers and employees responsible for any direct or indirect damage resulting from the use of Brighton Fibre software or Services, in particular, but not limited to; the use or impossibility to use the Service, confidence in information obtained, errors and omissions, defects, viruses, delay in transmission, interruption of service or loss of data.
6.2. The Customer agrees to indemnify Brighton Fibre, and its parent, subsidiaries, affiliates, officers and employees against any claim or demand, arising from any act of the Customer or third party including but not limited to:
6.2.1. A breach or allegation of breach of the conditions of this Agreement;
6.2.2. Negligence, misconduct or any allegation of negligence or misconduct by the Customer or by any third party;
6.2.3. The marketing or promotion undertaken by or on behalf of the Customer; or
6.2.4. The service content provided or marketed by or on behalf of the Customer, and all costs relating thereto.
7.1. All Intellectual Property Rights owned by one party shall remain vested in such party, and for clarity, and avoidance of doubt;
7.1.1. The Intellectual Property Rights of the Service Numbers shall be vested in Brighton Fibre;
7.1.2. Equipment provided at the Site, unless purchased by the Customer, all rights of any nature, trade name, documents, drawings and information including any access codes provided to the Customer, and information in Brighton Fibre's database accessed by the End Users and the Customer remain vested in Brighton Fibre; and
7.1.3. Information provided to the Customer by Brighton Fibre pursuant to this Agreement, pertaining to the Customer's End Users is the property of the Customer.
8.1. Either party shall be entitled to terminate this Agreement by giving to the other not less than 30 days notice of termination, unless otherwise stated in an order for services, subscription or side agreement.
8.2. Brighton Fibre may terminate this Agreement with immediate effect by giving notice at any time, if:
8.2.1. The Customer does not comply with the terms of this Agreement;
8.2.2. The Customer says, or appears to intend, that it will not abide by the terms of this Agreement;
8.2.3. The Customer ceases trading, convenes a meeting of, or comes to an arrangement with its creditors, has distress or other seizure levied over any of its assets or does not satisfy any demand for payment from any legal person;
8.2.4. Any step is taken to wind up or dissolve the Customer, a receiver, and/or manager or administrator appointed over any assets;
8.2.5. Brighton Fibre believes the Customer has allowed Services to be used for any unlawful purpose or any use prohibited by this Agreement; or
8.2.6. Brighton Fibre or the Customer, is instructed by, or receives any serious complaint or objection from any carrier with whom it contracts, OFCOM, or regulatory or governmental body.
8.3. Either party may terminate this Agreement if:
8.3.1. Either party has committed a breach of the Agreement, and fails to remedy the breach within 30 days of notice requiring it to do so, and;
8.3.2. Either party takes any steps to wind up or dissolve, or a receiver and/or manager or administrator is appointed over any assets;
8.4. Termination or expiration of this Agreement shall be without prejudice to the rights and remedies of the parties that may have accrued up to the date of termination or expiration.
8.5. The exercise of any right to terminate this Agreement pursuant to this clause shall be without prejudice to any other right or remedy of either party in respect of the breach concerned or any other breach.
8.6. All agreed outstanding monies will be settled by Customer as per the payment terms within this contract unless under dispute.
9.1. Brighton Fibre cannot provide a fault free service. Brighton Fibre gives no warranty that its network or Services shall be continuous, or will be free from faults. Brighton Fibre will, however, take steps to ensure its network and Services are reasonably fault free, and that service is reasonably uninterrupted.
9.2. In addition to clause 9.1, Brighton Fibre gives no warranty or guarantee that the service is satisfactory or suitable for the Customer's purposes, or that service shall be uninterrupted or fault free. All warranties relating to the service from Brighton Fibre are excluded, even if implied by statute.
9.3. The Customer acknowledges that:
9.3.1. No representation, warranty or statement other than detailed in this Agreement, forms any part of a Contract, nor has induced the Customer to use Brighton Fibre;
9.3.2. The service provided by Brighton Fibre was not designed for the Customer's individual requirements, and it is up to the Customer to decide if the service provided by Brighton Fibre is of satisfactory quality and fit for the purpose for which it is used;
9.3.3. Brighton Fibre is reliant on a third party for delivery of Inbound Channels, and therefore Brighton Fibre can have no liability of whatever nature for any delay in provision of the same, moreover Brighton Fibre makes no warranty that its network or Services shall be continuous, or will be free from faults.
10.1. During and after the period while this Agreement remains in force, both parties shall not disclose to any third party the information gained in connection with this Agreement, nor the terms and payments due, but each parties may disclose to its officers and employees such information as may be required for them to fulfil their proper performance of their duties, and may be used in the proper exercise of its rights and obligations under this Agreement.
10.2. The obligations of confidence, and restrictions on disclosure shall not apply in the following circumstances:
10.2.1. where such information is disclosed in public in writing by a party;
10.2.2. where such information was already in the public domain;
10.2.3. where a third party, who did obtain the same from the disclosing party, disclosed such information to it lawfully; or
10.2.4. where disclosure is required by law.
10.3. The Customer shall ensure that the confidentiality provisions of this Agreement bind all its employees and agents and shall indemnify Brighton Fibre against loss or damage suffered as a result of a breach of confidence by employees or agents.
10.4. Brighton Fibre shall have the unconditional and irrevocable right to disclose the identity and address of the Customer and any End User in the event of any complaint received from any regulatory or governmental body, BT plc, or any licensed telecommunications carrier, in connection with services offered by the Customer.
10.5. The provisions of this clause shall survive the termination of this agreement.
11.1. No failure by either party to exercise, and no delay by it in exercising, any right, power or remedy in connection with this Agreement (each a 'Right'), will operate as a waiver thereof, nor will any single or partial exercise of any Right preclude any other or further exercise of such Right or the exercise of any other Right. Any express waiver of any breach of this Agreement shall not be deemed to be a waiver of any subsequent breach.
11.2. The rights of Brighton Fibre under this Agreement are cumulative and in addition to any other right or remedy available to it at law or in equity.
11.3. Brighton Fibre may vary any provision in this Agreement, without prior consent from the Customer, if such change is required because of regulatory, insurance, safety or statutory changes made after the date of this Agreement. Brighton Fibre shall in such circumstances give the Customer 30 days notice of such changes. The Customer shall have the right by giving notice in writing to Brighton Fibre to terminate this Agreement, within 14 days of receiving such notice. This Agreement would then be terminated within 30 days of such notification, or on a later date specified by the Customer.
11.4. No amendment of this Agreement shall be effective unless in writing and signed by a duly authorised representative of each party.
11.5. If any provision of this Agreement is found by an court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal (whether an entire clause or only part of one) the other provisions of this Agreement shall remain in force as if the offending part had never been contained in it. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6. This Agreement and any associated Side Agreements or o constitute the entire agreement and understanding between the parties in relation to the matters dealt with in this Agreement and supersedes any previous written or oral arrangement, understanding or agreement between them relating to the subject matter of this Agreement. No party has relied upon any representation or promise except as expressly set out in this Agreement and any Side Agreement, save that nothing in this clause shall excuse either party from any representation, warranty, undertaking or statement made fraudulently or which was induced by fraud whether or not such representation or misrepresentation was made in the body of this Agreement.
11.7. The relationship between the parties shall be that of independent contractors. Neither party is intended to have, and neither of them shall represent to any other person that it has any power, right or authority to bind the other, or to assume, or to create any obligation or responsibility, express or implied, on behalf of the other party except as expressly provided in this Agreement or as otherwise permitted in writing. Nothing in this Agreement shall be construed to create between the parties, a partnership, joint venture, employment relationship, franchise or agency.
11.8. Nothing contained in this Agreement shall require either Party to take any action contrary to the law or to any order or regulation of any government or contrary to any permit or authorization granted to either Party by any government.
11.9. This Agreement may be entered into in any number of identical counterparts, all of which taken together shall constitute one and the same instrument.
11.10. Save for any third party covered by an indemnity given by either party under this Agreement, a person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
11.11. All communication between Customer and Brighton Fibre will be in English and all relevant documentation will be made available to the other party in English. In the event that any other language is used, or any document, including the Agreement, its annexes, attachments and amendments, is translated into any other language, only the English version will be binding.
11.12. Any notice or other document to be given or served hereunder shall be in writing and shall be delivered or sent by hand delivery, first class post or facsimile message to the party at the address appearing in this Agreement or such other address as each party shall substitute for such purpose by notice given to the other party.
11.13. A notice:-
11.13.1. if delivered by facsimile transmission, shall be deemed to be received on the date of transmission on production of a transmission report by the machine from which the facsimile was sent which indicates that the notice was sent in its entirety to the facsimile number of the recipient;
11.13.2. if sent by first class post in the UK shall be deemed to have been received two (2) days after the day on which it was posted;
11.13.3. if sent by airmail shall be deemed to be given seven (7) days after the day on which it was posted; and
11.13.4. if delivered by hand or courier during normal business hours on a Business Day, shall be deemed to be given on that day, or in any other case of hand delivery or courier, shall be deemed to be given on the Business Day following the date of delivery.
11.14. In proving such service it shall be sufficient to prove that delivery was made or that transmission was duly made and received or that the envelope containing such notice or document was properly addressed and posted as a prepaid first class letter.
12.1. This Agreement and any non-contractual obligations connected with it will be governed by and construed in accordance with the laws of England and both parties hereby submit to the exclusive jurisdiction of the English courts.
13.1. Brighton Fibre or any of it's suppliers or sub-contractors may without liability, prior warning or consent of the Customer, suspend the service, in the event that it wishes to carry our maintenance, upgrade works, or back-ups. Brighton Fibre will use all reasonable endeavours to minimise the duration of the suspension and also to inform the Customer in advance of any suspension.
13.2. In the event that the Customer becomes aware of any faults with the service, it shall notify Brighton Fibre as soon as is practicably possible.
13.3. Services may be suspended should Brighton Fibre become aware that the Customer or End User(s) is using or is likely to use the Services in any way which may be interpreted as illegal, immoral or otherwise disreputable, or likely to expose Brighton Fibre to unacceptable risks. Brighton Fibre's opinion on this matter is final.
13.4. In the event of the Customers network causing disruption to Brighton Fibre, Brighton Fibre reserves the right to terminate, block or suspend communication to protect network integrity.
14.1. Customers with postpay accounts agrees to settle monthly invoices using the Direct Debit system, and as such must have an active Direct Debit Instruction with Brighton Fibre. If Brighton Fibre receives notification that the mandate has been terminated, the Customer will be considered in breach of contract, and will be prompted to remedy this by providing up to date bank details.
14.2. Brighton Fibre may take payment Customer's bank account associated with the Direct Debit instruction within five (5) days of a bill being raised.
14.3. If the Customer queries charges on their monthly bill they should raise a ticket with Brighton Fibre, and any charge rebate agreed will be credited to their next monthly bill.
14.4. Brighton Fibre may charge interest on any undisputed invoice not paid by Customer (from the due date for payment to the actual date of payment) at a rate of ten percent (10%) per annum. For the avoidance of doubt the rate shall remain unchanged throughout the period of non payment. The rate per day shall be (10%)/365=0.0274% and not compounded on the new amount unpaid.
14.5. All invoices shall be invoiced and paid in GBP.