GAMING BROADBAND LTD (“GAMING BROADBAND LTD”)
STANDARD TERMS AND CONDITIONS OF BUSINESS
These Conditions contain the following information:
- Standard terms – pages 1 – 27;
- Schedule 1 (Broadband) – pages 28 – 32;
1. definitions
1.1 In these Conditions, the following definitions (as well as those found in the Schedules) apply:
Additional Service: an additional Service which is taken out by the Customer (after the date of the original Order) whilst the Services continue to be performed by GAMING BROADBAND LTD (during the Term).
Brexit: the UK ceasing to be a member state of the European Union.
BT: British Telecommunications Plc.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
GAMING BROADBAND LTD: Gaming Broadband Ltd Limited a private company limited by shares and registered in England and Wales with company number 09172914.
GAMING BROADBAND LTD Materials: has the meaning set out in clause 6.1(k).
Charges: the charges payable by the Customer for the supply of the Services and/or the Sale Equipment in accordance with clause 7.
Commencement Date: the date of GAMING BROADBAND LTD’s written acceptance of the Order in accordance with clause 3.1.
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.8, including and as amended by the bespoke provisions of the Relevant Schedules (whichever are applicable to the appropriate Service).
Contract: the contract between GAMING BROADBAND LTD and the Customer for the supply of Services and/or the sale of the Sale Equipment in accordance with these Conditions, constituting the Order and these Conditions (which include the Relevant Schedules).
Customer: the person, firm or company who purchases the Services, Equipment or Sale Equipment from GAMING BROADBAND LTD, as set out in the Order.
Data Protection Laws: applicable national privacy and data protection laws in force from time to time in the UK including the GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) (as amended) as amended by the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208), the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2015 (SI 2015/355) and the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2016 (SI 2016/524) and all subordinate and ancillary legislation, directions of any competent privacy regulator, common law and other relevant court decisions that relate to privacy and/or data protection (whether in whole or part) in England and Wales in each case as may be amended, supplemented or replaced from time to time.
Digital Wholesale Solutions: Anglia Telecom Centres Limited trading as Digital Wholesale Solutions, a company incorporated and registered in England and Wales with company number 2114602 whose registered office is at Lindred House, 20 Lindred Road, Brierfield, Nelson, BB9 5SR
Due Date: has the meaning set out in clause 7.5.
Early Termination Fee: means, unless set out differently in the appropriate Relevant Schedule which applies to a particular Service and disregarding Schedule 1, the Customer’s average monthly spend under the Contract (when the Customer has been using the Service normally), multiplied by the number of complete months remaining until the Contract which would otherwise have expired (up until the Minimum Term or the year anniversary thereof (if applicable)).
Equipment: the equipment, hardware and/or software supplied as part of the Services plus any additional equipment as is agreed between the parties to be supplied from time to time following the Commencement Date (not including Sale Equipment).
Force Majeure Event: has the meaning set out in clause 18.1(a).
GDPR the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Minimum Term: means the minimum term of the Contract starting on the Commencement Date and running for the period of months set out in the Relevant Schedule, which is extended until the minimum term of any Additional Service if an Additional Service is taken out by the Customer during the Term.
Order: the order form signed by the parties setting out the Services and/or Sale Equipment to be supplied by GAMING BROADBAND LTD to the Customer pursuant to these Conditions.
PBX: an approved private automatic branch exchange.
Public switched telephone network (PSTN): a copper wired network carrying analogue voice data.
Regulations: the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
Relevant Schedule: the schedule(s) which applies to the appropriate Service which is supplied pursuant to the Order, setting out the bespoke terms and conditions in relation to such Service.
Sale Equipment: the equipment which GAMING BROADBAND LTD agrees to sell to the Customer (as per Schedule 1) pursuant to these Conditions.
Service(s): the service(s) supplied by GAMING BROADBAND LTD to the Customer as set out in the Order, plus any Additional Service that GAMING BROADBAND LTD agrees to supply to the Customer from time to time, pursuant to these Conditions.
Site: the location(s) at which the Services are to be provided or the Sale Equipment is to be delivered as set out in the Order.
Sub-Contract: means any contract between GAMING BROADBAND LTD and a third party pursuant to which GAMING BROADBAND LTD engages or authorises a Sub-Contractor to process any Personal Data.
Sub-Contractors: those persons with whom GAMING BROADBAND LTD enters into a Sub-Contract or its servants or agents, and any third party with whom that third party enters into a sub-contract or its servants or agents.
Term: the term of the Contract (including any extension courtesy of an Additional Service as per clause 2.3), being from the Commencement Date until the Minimum Term and thereafter continuing on a rolling annual basis unless and until notice is served in accordance with these Conditions.
2. appointment and duration
2.1 With effect from the Commencement Date, and in consideration of the payment of the Charges by the Customer, GAMING BROADBAND LTD agrees to supply the Services and/or sell the Sale Equipment to the Customer in accordance with these Conditions.
2.2 The Contract shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter shall continue subject to either the Customer or GAMING BROADBAND LTD giving 30 days’ notice of termination in writing to the other party.
2.3 In the event that the Customer engages GAMING BROADBAND LTD in respect of any Additional Service during the Term from time to time, then the term of all of the current Services at that time shall be extended until the Minimum Term of the Additional Service and thereafter shall continue and be terminable collectively as per clause 2.2.
2.4 Clauses 2.5 to 2.13 (inclusive) shall apply only if the Customer is contracting as a “consumer” (as defined by regulation 4 of the Regulations).
2.5 Subject to any other provisions in these Conditions and only if the Customer is contracting as a consumer, the Customer may terminate the Contract by serving notice in writing on GAMING BROADBAND LTD in the form below (or by clearly otherwise stating that it intends to terminate the Contract) within 14 days of the Commencement Date, or, in the case of Sale Equipment or Services including Equipment, within 14 days of the date on which such Equipment or Sales Equipment comes into the physical possession of the Customer (i.e. a ‘cooling off’ period), and no Early Termination Fee shall be payable. If the Customer provides such notice, GAMING BROADBAND LTD will reimburse all payments made by the Customer (other than non-standard delivery charges of any Equipment or Sales Equipment), unless clauses 2.8, 2.11 or 2.12 are applicable. For the avoidance of doubt, if the Customer wishes to terminate the Contract in respect of an Additional Service they may do so within 14 days of GAMING BROADBAND LTD accepting the order of such Additional Service, but said notice of termination shall only serve to terminate that particular Additional Service and specifically does not terminate the Contract and the other on-going Services being provided to the Customer at that time.
To: [*] (the relevant Accounts Manager as notified to the consumer)
“I/We[*] hereby give notice that I/We[*] cancel my/our[*] contract for the supply of the goods[*]/for the supply of the service/s[*], as follows[*],
Ordered on [*]/Received on [*]
Name of consumer
Address of consumer
Signature of consumer (only if this form is notified on paper)
[*] Complete/delete as appropriate
2.6 If the Customer:
(a) gives notice to cancel the Contract in accordance with clause 2.5; and
(b) has already taken physical possession of any Equipment or Sale Equipment before cancellation,
then the Customer shall, at its own expense (unless the Contract is deemed to be an “off-premises contract” (as defined by regulation 5 of the Regulations) and the Equipment or Sale Equipment was delivered to the Customer’s home, in which case at GAMING BROADBAND LTD’s expense) and subject to clause 2.7, return such Equipment or Sale Equipment to GAMING BROADBAND LTD within 14 days of cancellation.
2.7 Clause 2.6 shall not apply to any Equipment or Sale Equipment to the extent that such Equipment or Sale Equipment has already been installed and cannot be uninstalled without damaging the Equipment or Sale Equipment, or has been otherwise damaged (to the extent that the value of the Equipment or Sale Equipment is diminished by any amount as a result of handling of the Equipment or Sale Equipment by the Customer beyond what is necessary to establish the nature, characteristics and functioning of the Equipment or Sale Equipment, in accordance with regulation 34(9) of the Regulations) by the Customer, in which case the Customer shall remain liable for the full Charges (or part of the Charges if such Equipment or Sale Equipment’s value has been diminished but it can be reused for its original purpose by GAMING BROADBAND LTD) in relation to such Equipment or Sale Equipment and (in the case of Equipment or Sale Equipment that has been damaged to the extent that it cannot be reused for its original purpose by GAMING BROADBAND LTD only) may not return it.
2.8 Unless the Contract is deemed to be a “distance contract” (as defined by regulation 5 of the Regulations) or an off-premises contract, in which case clauses 2.9 to 2.12 (inclusive) shall apply, then, for the avoidance of doubt, GAMING BROADBAND LTD may begin to provide the Services (or any Additional Service) from the Commencement Date (or the date of GAMING BROADBAND LTD accepting the order for any Additional Service). If the Customer subsequently gives notice to cancel the Contract in accordance with clause 2.5, the Customer shall:
(a) be liable for the full Charges in relation to any Services (or Additional Service) that GAMING BROADBAND LTD has fully performed prior to the date of any cancellation in accordance with clause 2.5; and
(b) be liable for any Charges (calculated on a pro-rata basis) for any Services (or Additional Service) to the extent that they have been partly performed by GAMING BROADBAND LTD prior to the date of cancellation in accordance with clause 2.5.
2.9 Notwithstanding any other provisions in these Conditions, if:
(a) the Customer is contracting as a consumer; and
(b) the Contract is deemed to be a distance contract or an off-premises contract,
then GAMING BROADBAND LTD shall not begin providing the Services (or any Additional Service) until 14 days after the Commencement Date (or the date of GAMING BROADBAND LTD accepting the order for any Additional Service) unless the Customer has provided express permission (by written notice or by checking the appropriate box on the Order) for GAMING BROADBAND LTD to do so.
2.10 Notwithstanding any other provisions in these Conditions, if:
(a) the Customer is contracting as a consumer;
(b) the Contract is deemed to be a distance contract or an off-premises contract;
(c) the Customer has not provided GAMING BROADBAND LTD with permission to begin providing the Services (or any Additional Service) in accordance with clause 2.9;
(d) the Customer has already made any payments to GAMING BROADBAND LTD under the Contract; and
(e) the Customer subsequently gives notice to cancel the Contract in accordance with clause 2.5,
GAMING BROADBAND LTD will reimburse all such payments made by the Customer (other than non-standard delivery charges of any Equipment or Sale Equipment), regardless of whether GAMING BROADBAND LTD has carried out any Services already or provided any Equipment or Sale Equipment. The Customer shall return any Equipment or Sale Equipment in accordance with clause 2.6 (subject always to clause 2.7).
2.11 Notwithstanding any other provisions in these Conditions and only if:
(a) the Customer is contracting as a consumer;
(b) the Contract is deemed to be a distance contract or an off-premises contract;
(c) the Customer has provided GAMING BROADBAND LTD with permission to begin providing the Services (or any Additional Service) in accordance with clause 2.9;
(d) GAMING BROADBAND LTD has fully performed the Services (or any Additional Service) within 14 days of the Commencement Date; and
(e) the Customer subsequently gives notice to cancel the Contract in accordance with clause 2.5,
then the Customer shall be liable for the full Charges in relation to the Services (or any Additional Service) (but no Early Termination Fee shall be payable).
2.12 Notwithstanding any other provisions in these Conditions and only if:
(a) the Customer is contracting as a consumer;
(b) the Contract is deemed to be a distance contract or an off-premises contract;
(c) the Customer has provided GAMING BROADBAND LTD with permission to begin providing the Services (or any Additional Service) in accordance with clause 2.9;
(d) GAMING BROADBAND LTD has partly performed the Services (or any Additional Service) within 14 days of the Commencement Date; and
(e) the Customer subsequently gives notice to cancel the Contract in accordance with clause 2.5,
then the Customer shall be liable for any Charges (calculated on a pro-rata basis) for any Services (or any Additional Service) to the extent that they have been partly performed by the date of cancellation (but no Early Termination Fee shall be payable).
2.13 Any reimbursements made in accordance with clauses 2.5 or 2.10 shall be made by GAMING BROADBAND LTD:
(a) within 14 days of GAMING BROADBAND LTD receiving notice that the Customer wishes to cancel the Contract in accordance with clause 2.5; or
(b) in relation to Equipment or Sale Equipment, within 14 days of GAMING BROADBAND LTD taking physical possession of the Equipment or Sale Equipment.
2.14 If the Contract requires equipment or a subscription to be ordered or procured from a third party services provider by GAMING BROADBAND LTD, and the third party services provider rejects such order or subscription by GAMING BROADBAND LTD, then GAMING BROADBAND LTD shall be entitled to terminate the Contract with immediate effect by giving written notice to the Customer, in accordance with clause 11.1(m).
2.15 Nothing in these Conditions creates any form of contractual relationship between the Customer and any third party services provider.
2.16 GAMING BROADBAND LTD does not have authority to act as agent for, or to bind, Digital Wholesale Solutions in any way.
3. basis of contract
3.1 The Customer signing the Order constitutes an offer by the Customer to purchase the Services and/or Sale Equipment in accordance with these Conditions. The Order shall only be deemed to be accepted when GAMING BROADBAND LTD provides written notice accepting the Order.
3.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of GAMING BROADBAND LTD which is not set out in the Contract.
3.3 Any samples, drawings, descriptive matter or advertising issued by GAMING BROADBAND LTD, and any descriptions or illustrations contained in GAMING BROADBAND LTD’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3.4 The Customer acknowledges that GAMING BROADBAND LTD has relied and will rely upon the information, documents and materials provided by the Customer. The Customer warrants that the information supplied has been and will at the time of supply be compiled with reasonable skill and care and shall not by virtue of any error or omission be misleading or inaccurate in any material respect.
3.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.6 Any quotation given by GAMING BROADBAND LTD shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
4. Supply of Services
4.1 GAMING BROADBAND LTD shall use its reasonable endeavours (so far as it reasonably can) to procure that the Services are provided in a reliable and professional manner and in accordance with good industry practice.
4.2 GAMING BROADBAND LTD shall supply the Services to the Customer, at the Site (if applicable), in accordance with the Order in all material respects.
4.3 GAMING BROADBAND LTD shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.4 GAMING BROADBAND LTD shall have the right to make any changes to the Services:
(a) which are necessary to comply with any applicable law or safety requirement;
(b) which GAMING BROADBAND LTD can no longer perform in accordance with the Contract as a result of Brexit; or
(c) which do not materially affect the nature or quality of the Services,
and GAMING BROADBAND LTD shall notify the Customer in any such event.
4.5 GAMING BROADBAND LTD shall comply with all applicable health and safety laws when it undertakes installation and/or maintenance work.
4.6 GAMING BROADBAND LTD shall endeavour to rectify and/or fix and/or assist with any fault in the Services (if appropriate) as soon as reasonably practicable.
4.7 GAMING BROADBAND LTD will normally carry out any installation and/or maintenance work during normal working hours but may, on reasonable notice (no less than 12 hours except in case of emergency), require the Customer to provide access at other times. At the Customer’s request GAMING BROADBAND LTD may agree to work outside normal working hours but the Customer may be asked by GAMING BROADBAND LTD to pay any relevant overtime charges for relevant staff.
4.8 GAMING BROADBAND LTD warrants to the Customer that the Services will be provided using reasonable care and skill.
5. equipment
5.1 If GAMING BROADBAND LTD provides Equipment to the Customer as part of the Services then unless as set out as otherwise in the Contract:
(a) the Equipment shall remain the sole property of GAMING BROADBAND LTD and title will remain with GAMING BROADBAND LTD at all times;
(b) the Customer will not interfere with or modify the Equipment and will not remove or alter any identification mark on the Equipment showing that it is owned by GAMING BROADBAND LTD;
(c) the Customer will make clear to third parties that the Equipment is GAMING BROADBAND LTD’s property;
(d) the Customer is responsible at all times for the safe use and safe custody of the Equipment whilst it is in the Customer’s custody, including procuring and maintaining an appropriate insurance policy to cover against loss of, or damage to, the Equipment;
(e) the Customer must keep the Equipment at the Site (save for mobiles) in accordance with GAMING BROADBAND LTD’s instructions;
(f) the Customer must permit GAMING BROADBAND LTD to inspect or test the Equipment remotely at such times as may be agreed between GAMING BROADBAND LTD and the Customer, such agreement not to be unreasonably withheld or delayed;
(g) the Customer must not attempt to let, sell, charge or otherwise deal with the Equipment in any way inconsistent with GAMING BROADBAND LTD’s ownership of such Equipment;
(h) the Customer must not permit or suffer any execution or distress to be levied or used against the Equipment or permit or suffer the Equipment to be seized under or affected by any distress, execution or other legal process;
(i) the Customer will be liable to GAMING BROADBAND LTD for any loss or damage to the Equipment except where it can be shown that GAMING BROADBAND LTD was responsible for such loss or damage. The Customer must notify GAMING BROADBAND LTD immediately of any loss or damage to the Equipment; and
(j) the Customer must notify GAMING BROADBAND LTD immediately if the Equipment is lost or stolen.
5.2 GAMING BROADBAND LTD warrants that each item of Equipment and/or Sale Equipment will conform in all material respects to the manufacturer’s specification for a period of 12 months (but in the case of software 90 days) from the date on which each item of Equipment or Sale Equipment is dispatched to the Customer by GAMING BROADBAND LTD (“Warranty Period”) unless special conditions associated with certain Equipment or Sale Equipment apply.
5.3 If, within the Warranty Period, the Customer notifies GAMING BROADBAND LTD of any defect or fault in the Equipment or Sale Equipment arising under normal use in consequence of which it fails to conform in any material respect with the manufacturer’s specification GAMING BROADBAND LTD shall, at GAMING BROADBAND LTD’s option either repair the faulty Equipment or Sale Equipment, or replace the faulty Equipment or Sale Equipment with the same or an equivalent item of Equipment or Sale Equipment which may be a new or refurbished item. In the event that Equipment or Sale Equipment is provided to replace Equipment or Sale Equipment which has failed during its Warranty Period, the replacement Equipment or Sale Equipment will be provided with its own Warranty Period which shall last for the greater of:
(a) 3 months from the date on which the replacement Equipment or Sale Equipment is dispatched to the Customer; or
(b) the outstanding period of the original Warranty Period.
5.4 Following the expiry of the Warranty Period of Equipment provided under the Contract in which GAMING BROADBAND LTD retains title, GAMING BROADBAND LTD will extend the Warranty Period in respect of such Equipment until the end of the Minimum Term (“Extended Warranty Period”). Upon expiry of the Minimum Term, or termination of the Contract, the Extended Warranty Period shall cease.
5.5 The warranty obligations set out in clauses 5.2 and 5.4 shall not apply in the event that the Customer, or anyone acting with the authority of the Customer, has amended or damaged the Equipment and/or Sale Equipment, or used it for a purpose or in a context, other than in accordance with GAMING BROADBAND LTD’s or the manufacturer’s instructions and advice.
5.6 Following any upgrade or replacement of Equipment or disconnection of Equipment from the Wireless Services (as defined in Schedule 3), GAMING BROADBAND LTD shall reserve the right to request the safe return of any such Equipment in which GAMING BROADBAND LTD retains title pursuant to clause 5.4 from the Customer to GAMING BROADBAND LTD at the Customer’s expense.
5.7 If the Equipment is not returned following expiry of the Term or is damaged in any way during the Term then the Customer must inform GAMING BROADBAND LTD immediately and within 7 days pay for the Equipment at the then retail purchase cost from time to time, or such equivalent replacement cost if the item of Equipment is no longer available for purchase. Disregarding the aforementioned, mobile Customers (Schedule 3) shall be entitled to retain mobile handsets at the end of the Minimum Term, unless they have selected the “lease” option in the Order, in which case the usual provisions of this clause 5 shall apply.
5.8 GAMING BROADBAND LTD reserves the right to add to, substitute, or to discontinue any item of Equipment at any time. GAMING BROADBAND LTD does not guarantee the continuing availability or any particular item of Equipment.
5.9 GAMING BROADBAND LTD may either remotely (or at the Site by prior arrangement) make or procure any inspection, test, modification, change, addition to or replacement of any Equipment provided GAMING BROADBAND LTD acts in a reasonable manner.
6. Customer’s obligations
6.1 The Customer shall (as appropriate):
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with GAMING BROADBAND LTD in all matters relating to the Services;
(c) comply with the reasonable operating instructions given by GAMING BROADBAND LTD to the Customer in respect of the use of the Services;
(d) provide GAMING BROADBAND LTD, its employees, agents, consultants and sub-contractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by GAMING BROADBAND LTD;
(e) provide GAMING BROADBAND LTD with such information and materials as GAMING BROADBAND LTD may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(f) prepare the Customer’s premises for the supply of the Services and meet any related costs;
(g) provide an adequate electricity supply and a suitable earth connection in the room for the operation of the Equipment to be installed at the Site;
(h) notify GAMING BROADBAND LTD immediately if it becomes aware of any fault in the Services;
(i) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
(j) comply at all times with all laws, codes of practice and obligations, applicable to the Customer. GAMING BROADBAND LTD will have no liability under the Contract for failure to comply with its obligations in any case where the Customer does not comply with any such relevant laws or obligations or does not obtain any necessary consents or approvals;
(k) keep and maintain all materials, equipment, documents and other property of GAMING BROADBAND LTD (“GAMING BROADBAND LTD Materials”) at the Customer’s premises in safe custody at its own risk, maintain GAMING BROADBAND LTD Materials in good condition until returned to GAMING BROADBAND LTD, and not dispose of or use GAMING BROADBAND LTD Materials other than in accordance with GAMING BROADBAND LTD’s written instructions or authorisation;
(l) ensure that the Services are used predominately for the Customer’s own genuine business purposes and specifically not for any illegal, immoral, menacing or unlawful purpose or not in any way which infringes the rights of any third party (including copyright and confidentiality) or for the transmission of any material which is illegal, defamatory, obscene, offensive or abusive in any way (or is intended to be);
(m) immediately reimburse GAMING BROADBAND LTD if GAMING BROADBAND LTD incurs any liability whatsoever (from a third party or otherwise) in respect of clause 6.1(l); and
(n) comply with all of its obligations under the Contract at all times.
6.2 If GAMING BROADBAND LTD’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”) (in addition to clause 8):
(a) GAMING BROADBAND LTD shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays GAMING BROADBAND LTD’s performance of any of its obligations;
(b) GAMING BROADBAND LTD shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from GAMING BROADBAND LTD’s failure or delay to perform any of its obligations as set out in this clause 6.2; and
(c) the Customer shall reimburse GAMING BROADBAND LTD on written demand for any costs or losses sustained or incurred by GAMING BROADBAND LTD arising directly or indirectly from the Customer Default on an indemnity basis.
7. Charges and payment
7.1 The Charges for the Services and/or Sale Equipment shall be such charges, costs, disbursements, tariffs and expenses as set out in the Order and/or (referred to in) the Relevant Schedule plus such additional charges which are incurred by the Customer (or by GAMING BROADBAND LTD in accordance with clause 7.8) from time to time.
7.2 GAMING BROADBAND LTD shall invoice the Customer in accordance with the payment schedule of the Order and/or the Relevant Schedule.
7.3 The Customer shall pay each invoice submitted by GAMING BROADBAND LTD (at any time):
(a) All direct debits for the customers monthly charge will be collected on the last working day of the month.
(b) in full and in cleared funds to a bank account nominated in writing by GAMING BROADBAND LTD,
(c) All invoices will be sent on the 5th day of the calendar month.
and time for payment shall be of the essence of the Contract.
7.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by GAMING BROADBAND LTD to the Customer, the Customer shall, on receipt of a valid VAT invoice from GAMING BROADBAND LTD, pay to GAMING BROADBAND LTD such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.5 Without limiting any other right or remedy of GAMING BROADBAND LTD, if the Customer fails to make any payment due to GAMING BROADBAND LTD under the Contract by the due date for payment (“Due Date”), GAMING BROADBAND LTD shall have the right to charge interest, compensation and charges pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
7.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against GAMING BROADBAND LTD in order to justify withholding payment of any such amount in whole or in part. GAMING BROADBAND LTD may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by GAMING BROADBAND LTD to the Customer.
7.7 Upon 28 days’ notice or as much notice as is reasonably practicable in the circumstances, GAMING BROADBAND LTD reserves the right to pass on any price increases (in its Charges) to the Customer where such change arises as a consequence of changes imposed by third parties, including third party manufacturers or suppliers or a regulatory body for example. This clause 7.7 shall include changes that occur as a result of Brexit, including any aspect of the Services that becomes more expensive for GAMING BROADBAND LTD to provide, for reasons of currency fluctuations, trade tariffs or otherwise.
7.8 If the Contract requires equipment or a subscription to be ordered or procured from a third party services provider by GAMING BROADBAND LTD, GAMING BROADBAND LTD reserves the right to pass on any disbursements, expenses or additional charges to the Customer where such costs are imposed on GAMING BROADBAND LTD by such third party services provider in relation to the Equipment or Service.
7.9 The Customer is urged to regularly check the amounts and frequency of payments made to GAMING BROADBAND LTD. In the event that there has been some form of overcharging by GAMING BROADBAND LTD then the Customer is only permitted to reclaim 6 months’ worth of overcharging from the point of notifying GAMING BROADBAND LTD of such error. In the event of adding any Additional Services or renewing any of the Services then the right to reclaim any previous overcharging is irrevocably waived and released at that point.
8. suspension/interruption of services
8.1 GAMING BROADBAND LTD shall be entitled (upon reasonable notice or immediately if appropriate) to temporarily suspend and take out of use any Services for operational or other reason, including:
(a) where GAMING BROADBAND LTD is entitled to terminate the Contract pursuant to clause 11 (without prejudice to any of GAMING BROADBAND LTD’s other rights, remedies and/or causes of action);
(b) improving, upgrading, updating and/or altering any content or part of the Services;
(c) replacing, maintenance, repair and upgrade of any of the Services;
(d) dealing with any actual or suspected security breach, virus, or attack or any misuse;
(e) where required by any regulatory, governmental or other competent authority;
(f) any emergency or taking any other action that GAMING BROADBAND LTD reasonably considers necessary as a reasonable and prudent provider of the Services;
(g) where GAMING BROADBAND LTD believes there has been and/or there is and/or there is expected to be a suspected abuse of the Services, including for example a high call spend on premium numbers;
(h) where GAMING BROADBAND LTD believes the Customer is not using the Services in accordance with their usual practice or is not using the Services properly;
(i) where the Customer has not paid for the Equipment and/or the Sales Equipment by the Due Date;
(j) excessive usage of the Services;
(k) false or incorrect information has been provided by the Customer;
(l) as a result of Brexit; and
(m) any reason whatsoever where GAMING BROADBAND LTD has good and genuine cause to do so.
8.2 Where Services are suspended in accordance with clause 8.1, the following provisions will apply:
(a) subject to any requirements of any third party services provider, GAMING BROADBAND LTD will use reasonable efforts to minimise any downtime, and to carry out routine maintenance of upgrading at a suitable time agreed with the Customer in advance;
(b) GAMING BROADBAND LTD will use reasonable efforts, wherever practicable, to inform the Customer at least 24 hours in advance that the Services shall be suspended; and
(c) a reconnection charge of £25 shall be payable by the Customer.
8.3 GAMING BROADBAND LTD and any third party services provider shall be free to carry out emergency or urgent maintenance at any time to ensure the Services are continued to be supplied. GAMING BROADBAND LTD shall advise the Customer if practicable prior to the conducting of any such emergency or urgent maintenance.
8.4 In the event that the Customer is in breach of its payment obligations, GAMING BROADBAND LTD may at its reasonable discretion (and without prejudice to any other rights which GAMING BROADBAND LTD may have) and upon giving the Customer prior written notice, suspend the provision of all or any of the Services from a date and time not less than 7 days from the date of such written notice having been given. GAMING BROADBAND LTD shall recommence provision of the Services as soon as reasonably practicable following the Customer’s fulfilment of its payment obligations (in respect of all of the Services). In the event that the breach is not remedied within the period of 7 days from the date that the Services are suspended, then GAMING BROADBAND LTD shall have the option (without prejudice to any other rights which GAMING BROADBAND LTD may have) to terminate the Contract with immediate effect in accordance with clause 11.1.
8.5 In the event that a third party services provider suspends the provision of all or any of the third party services to GAMING BROADBAND LTD, GAMING BROADBAND LTD shall have the right to suspend the provision of any part of the Services which is wholly or partly dependent on GAMING BROADBAND LTD receiving the third party services. Where this clause 8.5 applies GAMING BROADBAND LTD shall give to the Customer as much notice as is reasonably practicable that the Services will be suspended and shall resume the provision of the suspended Services as soon as is reasonably practicable after the resumption of the provision of the third party services to GAMING BROADBAND LTD.
8.6 During any period of suspension of the Services:
8.6.1 GAMING BROADBAND LTD shall not be responsible for the provision of the suspended Services or for any requirements or service levels not being met (save to the extent that GAMING BROADBAND LTD’s failure to comply with the other terms of the Contract or to provide the Services which are not suspended adversely affects provision of the suspended Services); and
8.6.2 the Customer shall not pay any Charges in respect of the suspended Services, unless the suspension was due to the Customer’s breach of its obligations under the Contract.
8.7 Any period of suspension of the Services may be to such extent and of such duration as GAMING BROADBAND LTD may reasonably specify.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude GAMING BROADBAND LTD’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
(d) any other liability that cannot legally be limited.
9.2 Subject to clause 9.1:
(a) GAMING BROADBAND LTD shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) GAMING BROADBAND LTD’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 2x the amount paid by the Customer to GAMING BROADBAND LTD during the preceding 12 months before the purported breach in respect of that particular Service (or in respect of the Sale Equipment 2x the invoice value of the particular item of Sale Equipment).
9.3 GAMING BROADBAND LTD shall under no circumstances be liable to the Customer in respect of any direct, indirect or consequential losses resulting from:
(a) damage, improper use, operation or neglect of the Equipment (or Sale Equipment) or the subjection of the Equipment (or Sale Equipment) by the Customer to unusual physical or electrical stress, the neglect or misuse of the Equipment or any failure or fluctuation of electrical power, air conditioning, humidity control or other environmental controls or where the environment in which the Equipment operates and is sited does not meet BS 6701 requirements;
(b) modification of the Equipment (or Sale Equipment) or its merger (in whole or part) with any other equipment unless approved in writing by GAMING BROADBAND LTD;
(c) the Customer failing to implement recommendations for any solutions to faults advised by GAMING BROADBAND LTD;
(d) faults due to failures of electrical supplies, networks or PBX systems;
(e) electrical work external to the Equipment (or Sale Equipment);
(f) transportation or relocation of the Equipment (or Sale Equipment) not performed by or on behalf of GAMING BROADBAND LTD;
(g) use of the Equipment (or Sale Equipment) for a purpose for which it was not designed or breach by the Customer of any maintenance agreement covering the Equipment (or Sale Equipment);
(h) any repair, adjustment, alteration or modification of the Equipment (or Sale Equipment) by a third party and without GAMING BROADBAND LTD’s prior written consent;
(i) any Force Majeure Event or any event outside of the reasonable control of GAMING BROADBAND LTD; or
(j) a third party succeeding in “hacking” into the Equipment (or Sale Equipment).
9.4 To be valid, any claim against GAMING BROADBAND LTD arising out of or in connection with the Contract whether in contract, tort or otherwise, must be brought within 12 months of the beginning of the commencement of the purported circumstances and/or breach which allegedly gave rise to such claim.
9.5 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.6 This clause 9 shall survive termination of the Contract.
10. Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Equipment and/or Services are owned absolutely by GAMING BROADBAND LTD or a third party (who in such circumstances shall have licensed the same to GAMING BROADBAND LTD).
10.2 To the extent possible, GAMING BROADBAND LTD grants the Customer a non-exclusive and non-transferable licence to use the Equipment for the sole purpose of the Services. The Customer is strictly forbidden from reproducing all or any part of the Equipment, save for the Customer will be entitled to make a single back-up copy for security purposes only. The Customer will not modify, adapt, translate, reverse engineer or disassemble the Equipment but if the Customer wishes to exercise its rights under section 50B of the Copyright, Designs and Patents Act 1988 then GAMING BROADBAND LTD will give the Customer information about the terms on which such rights may be exercised.
10.3 Copyright in all documents, drawings and information including if applicable any access codes supplied to the Customer in connection with the Contract remain vested in GAMING BROADBAND LTD or the copyright owner. Such documents, drawings and information are confidential and will not be copied, disclosed or used (except for the purpose for which they were supplied) without GAMING BROADBAND LTD’s prior written consent.
10.4 All GAMING BROADBAND LTD Materials are the exclusive property of GAMING BROADBAND LTD.
10.5 The Customer shall inform GAMING BROADBAND LTD of any breaches or alleged or purported breaches of the Intellectual Property Rights in respect of the Equipment and/or Services and shall provide GAMING BROADBAND LTD with all such reasonable assistance to this regard as requested by GAMING BROADBAND LTD.
11. Termination
11.1 Without limiting its other rights or remedies, GAMING BROADBAND LTD may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of the Customer being notified in writing to do so;
(b) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of that other party;
(e) the Customer (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
(h) a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(b) to clause 11.1(i) (inclusive);
(k) the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(l) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
(m) clause 2.14 is applicable.
11.2 Without limiting its other rights or remedies, GAMING BROADBAND LTD may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on or before the Due Date.
11.3 Without limiting its other rights or remedies, GAMING BROADBAND LTD shall have the right to terminate the Contract by giving the Customer 30 days’ written notice if there is a substantial adverse impact on GAMING BROADBAND LTD’s ability to perform its obligations under the Contract as a result of Brexit, and no Early Termination Fee shall be payable by the Customer.
11.4 Without limiting its other rights or remedies, GAMING BROADBAND LTD shall have the right to terminate the Contract by giving the Customer 30 days’ written notice following the expiration of the Minimum Term in accordance with clause 2.2.
11.5 In the event that the Contract is terminated (for whatever reason) before the Minimum Term or the year anniversary thereof (if applicable), the Customer shall pay the Early Termination Fee to GAMING BROADBAND LTD within 7 days (unless otherwise stated in these Conditions).
11.6 For the avoidance of doubt the Early Termination Fee is payable in respect of all applicable Services (regardless of the date upon which the Services were entered into) at the actual time of termination.
11.7 The parties acknowledge and accept that the Early Termination Fee does not constitute a penalty and is a genuine estimate of loss on behalf of GAMING BROADBAND LTD.
11.8 If the Contract is terminated in breach of these Conditions, then any discounts previously granted to the Customer will become immediately repayable to GAMING BROADBAND LTD.
12. Consequences of termination
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to GAMING BROADBAND LTD all of GAMING BROADBAND LTD’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, GAMING BROADBAND LTD shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all GAMING BROADBAND LTD Materials and any Equipment which has not been fully paid for. If the Customer fails to do so, then GAMING BROADBAND LTD may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13. indemnity in respect of breaches by the customer
13.1 The Customer agrees to indemnify on a full indemnity basis and hold GAMING BROADBAND LTD harmless in respect of any breaches, and/or purported breaches, of these Conditions.
13.2 In particular, if GAMING BROADBAND LTD find it necessary to use solicitors or other professional parties to recover any monies owing to them under the Contract or in dealing with any breaches of the Contract by the Customer, the Customer shall in addition be required to pay the costs incurred by GAMING BROADBAND LTD and shall indemnify GAMING BROADBAND LTD in respect of the same regardless of any court decision as to the liability for costs.
14. data protection
14.1 In this clause 14, the terms “Processing”, “Personal Data”, “Personal Data Breach”, “Data Subject” “Processor” and “Controller” are as defined in the Data Protection Act Laws and “Process” shall be construed accordingly.
14.2 In setting up and administering an account for the Customer with GAMING BROADBAND LTD, GAMING BROADBAND LTD acts as an independent Controller. In all other respects, including but not limited to:
(a) the introduction by GAMING BROADBAND LTD of the Customer to a third party service provider (“Third Party”) and the transfer of relevant Customer data to a Third Party to enable the Third Party to set up their service and GAMING BROADBAND LTD has no other responsibility under the Data Protection Laws in respect of those services; and
(b) the supply of the Services (and in respect of which GAMING BROADBAND LTD has no other responsibility under the Data Protection Laws in respect of those services);
the parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and GAMING BROADBAND LTD is the Processor .
14.3 When acting as a Controller:
(a) Each Party is responsible for its own compliance with the Data Protection Laws when Processing Personal Data.
(b) When providing Personal Data to GAMING BROADBAND LTD in connection with this Contract, the Customer warrants that it is lawfully entitled to do so, that it has provided each Data Subject with the information required under Article 13 / 14 of the GDPR to enable GAMING BROADBAND LTD to use the Personal Data for the provision of the Services (including the provision of relevant Personal Data to a Third Party service providers) and has obtained all necessary consents for such provision and use as anticipated by this Contract.
14.4 When GAMING BROADBAND LTD Processes Personal Data on behalf of the Customer in connection with the provision of the Services, GAMING BROADBAND LTD shall:
(a) comply with the Data Protection Laws when Processing the Personal Data;
(b) Process the Personal Data (being contact details and/or message content relating to, the Customer’s staff, customers and/or suppliers or included in communications with them) for the provision of the Services and for the term of the Services only on the Customer’s written instructions from time to time, unless such Processing is required by any law (other than contract law) to which GAMING BROADBAND LTD is subject, in which case the GAMING BROADBAND LTD shall (to the extent permitted by law) inform the Customer of that legal requirement before carrying out the Processing; and
(c) notify the Customer as soon as reasonably practicable if it considers that the Customer’s instructions are in breach of Data Protection Laws or other EU member state laws.
14.5 In relation to the security and confidentiality of the Personal Data, GAMING BROADBAND LTD shall:
(a) in addition to the confidentiality obligations in clause 16:
(i) ensure that GAMING BROADBAND LTD’s employees and other personnel (“GAMING BROADBAND LTD Personnel”) who need to have access to the Personal Data are granted access to such data only for the purposes of the performance of this agreement and all GAMING BROADBAND LTD Personnel are informed of the confidential nature of the Personal Data, comply with the obligations set out in this clause 14, and are bound by appropriate confidentiality obligations or an appropriate statutory obligation of confidentiality when accessing the Personal Data;
(ii) not publish, disclose or divulge any of the Personal Data to any third party (including for the avoidance of doubt the Data Subject itself) unless directed to do so in writing by the Customer; and
(iii) not modify, amend or alter the contents of the Personal Data unless specifically authorised in writing by the Customer;
(b) take appropriate security measures to protect the Personal Data;
(c) ensure that it has in place, taking into account the nature of the Processing, appropriate technical and organisational measures, ensure a level of security for the Personal Data which is appropriate to the risks to individuals that may result from the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data;
(d) be specifically authorised to engage or authorise Digital Wholesale Solutions to Process the Personal Data;
(e) be generally authorised (and the Customer hereby consents to) to engage or authorise Sub-Contractors to Process the Personal Data, provided that:
(i) the Sub-Contractor has either entered into a direct contract with the Customer or a contract with GAMING BROADBAND LTD which incorporates the provisions equivalent to those in this agreement in relation to confidentiality, data protection and security;
(ii) where a Sub-Contractor is appointed pursuant to this clause 14.5(e), GAMING BROADBAND LTD shall remain liable for the acts and omissions of that Sub-Contractor as if they were GAMING BROADBAND LTD’s own; and
(iii) shall notify the Customer of any intended changes to sub-processors or the sub-processing terms;
(f) In relation to transfers of Personal Data to areas outside the European Economic Area (“EEA”):
(i) GAMING BROADBAND LTD shall not transfer any Personal Data outside the EEA without the Customer’s prior written consent; and
(ii) if the Customer consents to any transfers pursuant to clause 14.5(f)(i), GAMING BROADBAND LTD shall ensure that the following conditions are met in relation to such transfers:
(A) GAMING BROADBAND LTD complies with its obligations under the Data Protection Laws by ensuring that there is an adequate level of protection to any Personal Data that is transferred;
(B) that there are appropriate safeguards in place in relation to that transfer;
(C) that Data Subjects have enforceable rights and effective legal remedies; and
(D) that GAMING BROADBAND LTD shall comply with any other reasonable instructions as notified to it by the Customer in relation to such transfers;
(g) taking into account the nature of the Processing by GAMING BROADBAND LTD, assist the Customer (at the Customer’s expense) to comply with its obligations under the Data Protection Laws in relation to:
(i) the Customer’s obligations in relation to responding to Data Subject requests, including (but not limited to) the following:
(A) complying with the relevant timescales as set out in the Data Protection laws but strictly in accordance with the Customer’s instructions;
(B) providing the Customer with any Personal Data that it holds in relation to the Data Subject making the complaint or request within the timescales are required by the Customer; and
(C) providing the Customer with any other information as so requested by the Customer in this regard;
(ii) the security of the Personal Data;
(iii) notifying Personal Data Breaches to the relevant supervisory authority;
(iv) communicating Personal Data Breaches to the Data Subject; and
(v) impact assessments and related consultations with supervisory authorities or regulators;
(h) that the Customer requests from time to time to enable the Customer to verify that GAMING BROADBAND LTD is in compliance with its obligations in this clause 14;
(i) at the Customer’s expense shall permit the Customer or its external auditors to inspect and audit GAMING BROADBAND LTD’s data Processing activities and those of its agents, subsidiaries and sub-contractors;
(j) on becoming aware of a Personal Data Breach, notify the Customer without undue delay and assist the Customer (at the Customer’s expense) with the performance of its obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the Processing and information available to GAMING BROADBAND LTD;
(k) GAMING BROADBAND LTD shall notify the Customer within five Business Days upon receiving the following:
(i) a request from a Data Subject to have access to that person’s Personal Data; or
(ii) a complaint or request relating to the Customer’s obligations under the Data Protection Legislation; and
(l) on the expiry or termination of this agreement GAMING BROADBAND LTD shall (without prejudice to and in addition to its obligations upon expiry or termination of this agreement) notify the Customer of the Personal Data it holds. If requested by the Customer (or any replacement supplier as nominated by the Customer), at the Customer’s option, either return or delete all copies of the Personal Data Processed by or on behalf of the Customer unless GAMING BROADBAND LTD is required by law to retain any copies of such data. For the purposes of this clause 14.5(l), GAMING BROADBAND LTD shall be the Controller in relation to any such retained Personal Data, and shall Process it solely as necessary to comply with its obligations under GDPR.
14.6 The Customer acknowledges that GAMING BROADBAND LTD is reliant on the Customer alone for direction as to the extent GAMING BROADBAND LTD is entitled to use and Process the Personal Data. Subject to clause 14.4(c), GAMING BROADBAND LTD shall be entitled to relief from liability in circumstances where a Data Subject makes a claim or complaint with regards to GAMING BROADBAND LTD’s actions to the extent that such actions directly result from instructions received from the Customer.
14.7 The Customer shall, at all times during and after the Term, indemnify GAMING BROADBAND LTD and keep GAMING BROADBAND LTD indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by GAMING BROADBAND LTD arising from any breach of the Customer’s obligations under this clause 14.
15. direct debit guarantee
15.1 In accordance with the terms of the Order, GAMING BROADBAND LTD may permit the Customer to pay for some of the Services by way of direct debit.
15.2 A direct debit guarantee is offered by all banks and building societies that take part in the direct debit scheme, and the Customer is advised to familiarise itself with the terms of said guarantee.
15.3 If a direct debit bounces then GAMING BROADBAND LTD reserves the right to charge an administration fee of £15.
16. Confidentiality
16.1 A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or sub-contractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain, and shall ensure that such confidential information is not copied, adapted or altered in any way. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 16 shall survive termination of the Contract.
16.2 The Customer accepts and permits GAMING BROADBAND LTD to use information and data about calls routed through any Equipment including but not limited to origin, destination, duration, route and time, so that GAMING BROADBAND LTD:
(a) can perform its obligations under the Contract and maintain or upgrade the quality of the telecommunications services it provides or offers; and
(b) can collate the information and other customer’s information to produce non-customer-specific statistics to assist GAMING BROADBAND LTD for whatever reason.
17. complaints
In the unlikely event of the Customer wishing to make a complaint please direct this in the first instance to your point of contact at GAMING BROADBAND LTD. If you are unable to resolve the issues within a reasonable time then please write to the directors of GAMING BROADBAND LTD at the registered office who will endeavour to deal with the matter as swiftly and professionally as possible.
18. General
18.1 Force majeure:
(a) For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of GAMING BROADBAND LTD including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of GAMING BROADBAND LTD or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of GAMING BROADBAND LTD’s or sub-contractors.
(b) GAMING BROADBAND LTD shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents GAMING BROADBAND LTD from providing any of the Services for more than 6 weeks, GAMING BROADBAND LTD shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
18.2 Assignment and sub-contracting:
(a) GAMING BROADBAND LTD may at any time, without the consent of the Customer, assign, transfer, charge, sub-contract (subject to clause 14) or deal in any other manner with all or any of its rights under the Contract and may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party or agent, and for the avoidance of doubt this shall include (but not be limited to):
(i) requiring the Customer to pay all monies due from the Customer directly to a third party; and
(ii) circumstances where GAMING BROADBAND LTD ceases trading or enters into any arrangement with its creditors or fails to pay a third party services provider on terms it has agreed with such third party services provider.
(b) The Customer shall not, without the prior written consent of GAMING BROADBAND LTD, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
18.3 Notices:
(a) Any notice or other communication required to be given to the Customer under or in connection with this Contract shall be in writing and shall (unless otherwise stated in these Conditions) be delivered to the Customer personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax or email to the Customer’s main fax number or main email address.
(b) Any notice or other communication required to be given to GAMING BROADBAND LTD under or in connection with this Contract shall be in writing for the attention of the Customer’s Account Manager (as notified to the Customer) at GAMING BROADBAND LTD and shall be delivered personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at his office, or sent by fax or email to the Account Manager’s fax number or email address.
(c) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(d) This clause 18.3 shall not apply to the service of any proceedings or other documents in any legal action.
18.4 Waiver:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
18.5 Severance:
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
18.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
18.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
18.8 Variation: GAMING BROADBAND LTD reserves the right to make reasonable variations to the Contract from time to time upon reasonable notice. The Customer acknowledges that third party services providers may require such variations to be made by GAMING BROADBAND LTD and that such changes will always be regarded as reasonable and such notice period as is applicable between GAMING BROADBAND LTD and the third party services provider will always be regarded as reasonable. For the avoidance of doubt the Customer cannot make any variations to the Contract unless agreed in writing with GAMING BROADBAND LTD.
18.9 Governing law and jurisdiction: The Conditions, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
19. Interpretation
19.1 Construction – in these Conditions, the following rules apply:
(a) A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
(d) A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(e) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
(f) Unless the context requires otherwise, a reference to one gender shall include a reference to the other genders.
(g) Any phrase introduced by the terms “including”, “include”, “in particular” or “for example” or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(h) A reference to “writing” or “written” includes faxes and e-mails.
(i) Aablished.e to a company shall include any company, corporation or other body corporate, wherever and however incorporated or esny obligation on a party not to do something includes an obligation not to allow that thing to be done.
(j) Any obligations under these Conditions are jointly and severally liable as between the obligors.
(k) Clause and Schedule headings shall not affect the interpretation of these Conditions.
(l) References to clauses and Schedules are to clauses and Schedules of these Conditions and reference to paragraphs are to paragraphs of the relevant Schedule.
(m) The Schedules form part of these Conditions as if set out in the main body of these Conditions.
(n) In the event of conflict between the terms of these Conditions and the Schedules the terms and conditions of the Schedules shall apply.
(o) These Conditions shall govern any future relations between GAMING BROADBAND LTD and the Customer save for any updated terms and conditions of GAMING BROADBAND LTD from time to time.
(p) These Conditions shall be interpreted constructively, intuitively and sensibly given the nature of the fact that not all of the provisions in the main body of these Conditions and the Relevant Schedules will apply to each and every Service provided pursuant to the Order.
(q) If a Relevant Schedule which doesn’t directly relate to the Services being supplied contains a provision which in some way benefits GAMING BROADBAND LTD, GAMING BROADBAND LTD can rely on such a provision.
SCHEDULE 1 – BROADBAND
DEFINITIONS
In this Schedule, the following definitions (as well as those found at clause 1 of the main body of these Conditions) apply:
Access Network: the copper, radio or fibre optic lines owned and operated by wholesale partners which connect Customer Sites to the GAMING BROADBAND LTD network.
ADSL: means Asymmetric Digital Subscriber Line which is a data transfer technology using a copper line offering greater bandwidth downstream than upstream.
Broadband Services: this refers to any ADSL, SDSL, FTTC, FTTP, SoGea services as defined below.
Core Network: the switching and routing infrastructure used to connect the solution components and provide Customers with Internet or private WAN access.
CPE: means Customer Premises Equipment, such as a router or switch, supplied by GAMING BROADBAND LTD to access the Broadband Services.
Fibre Broadband (FTTC): means Fibre to the Cabinet which is a data transfer technology using a copper line to the cabinet and fibre to the Site of the Customer offering greater bandwidth downstream than upstream.
Fibre to the Premises (FTTP): means Fibre to the Premises which is a data transfer technology using a fibre line to the Site of the Customer offering greater bandwidth downstream than upstream.
SoGea Broadband: means Fibre to the Cabinet that is provided on a copper line that is inclusive in the service.
Migration authority code (MAC): a code required for the transfer of Broadband Services from the incumbent service provider.
SDSL: means Symmetrical Digital Subscriber Line which is a digital transfer technology offering equal down and upstream bandwidth running over a pair of copper wires.
- SERVICES SUPPLIED
1.1 The Contract includes the supply and usage of the Broadband Services utilising the Core Network and where necessary, wholesale partner Access Networks, to transmit data between the Site and Internet access.
1.2 Details surrounding the Broadband Services including the Access Network utilised, data transfer speed and the configuration for the Broadband Services and any associated Equipment are set out in the Order.
- USE OF SERVICE(S)
1.1 GAMING BROADBAND LTD may be required to carry out additional work in order to provide the Broadband Services at the Site. Where these excess construction charges are incurred by GAMING BROADBAND LTD, GAMING BROADBAND LTD reserves the right to pass on these charges to the Customer.
1.2 If by use of GAMING BROADBAND LTD’s service monitoring system, or through the Customer’s own means, the Customer detects a service fault the Customer must inform GAMING BROADBAND LTD as soon as possible.
- CHARGES
3.1 The Charges for the Broadband Services shall be as set out in the Order.
3.2 In respect of the Equipment to be supplied by GAMING BROADBAND LTD as part of the Broadband Services the Customer may, at GAMING BROADBAND LTD’s option, be required to pay a set figure to GAMING BROADBAND LTD before installation of the Equipment or if the Customer requests a higher specification of Equipment, each as set out in the Order.
3.3 If the Customer requests replacement Equipment (due to a fault) then GAMING BROADBAND LTD may charge for postage at their standard rates.
3.4 Upon the expiry of the Term for whatever reason or if a line is transferred to another service provider utilising a MAC (in addition to an Early Termination Fee (if applicable)) the Customer shall pay GAMING BROADBAND LTD a “termination fee”, the amount of which is set out in the Order.
- CONTRACT TERM
The Minimum Term of the Contract shall be as set out in the Order or as otherwise agreed in writing between the parties.
- SERVICE LEVELS AGREEMENT
5.1 GAMING BROADBAND LTD shall use its reasonable endeavours to provide the Broadband Services within 4-21 Business Days of request from the Customer in respect of:
(a) Broadband Services – approximately 5-10 Business days;
(b) FTTC, FTTP & SoGea – approximately 10-21 Business Days; or
(c) Migrations – approximately 5 Business Days for ADSL, and approximately 10 Business Days for FTTC, FTTP & SoGea.
All installations are subject to Site survey.
- There will be a 10 day training period for ADSL, FTTC and SoGea connections to reach their maximum stable rate, during which the CPE should be left on and not re-booted, even though the Broadband Services may be temporarily unavailable.
5.3 An “order matching reference” number will be required for simultaneous ADSL and PSTN provides. The provision lead time will be between approximately 10-21 days from receipt of that reference number if the Customer has chosen an alternative PSTN provider. Failure to provide this reference number will result in a delay.
5.4 For transfer of ADSL from services from another service provider and transfer of FTTC services where no engineer appointment is required, please see paragraph 5.1 of this Schedule. A MAC code maybe required to process the transfer and the order cannot be progressed until this has been received.
5.5 The service package may not be downgraded to a level below that which has been agreed within the Contract. In the event that an upgrade or downgrade is performed, the billing rate will be changed effective from the 1st day of the next calendar month. Upgrades or downgrades do not affect the current contractual term.
- SERVICE AVAILABILITY AND PERFORMANCE
6.1 Broadband connectivity is a reasonable endeavours product and therefore a service availability target cannot be quoted against individual ADSL, FTTP, SoGea or FTTC circuits.
6.2 In line with the “Ofcom Code of Practice”, the Customer will be advised of the likely download speed that will be received, along with the minimum and maximum throughput on that line before the Customer purchases the Broadband Services. However, these speeds are indicative and cannot be guaranteed as ADSL is a rate adaptive product.
- SUPPORT LEVELS AND FAULT RESOLUTION
7.1 All details of the opening hours for technical support are available upon request.
7.2 In the event of a fault, if “BT Maintenance Class 4” is applied, the target time to repair will be 24 hours, excluding applicable parked time. If “BT Maintenance Class 14” is applied, the target time to repair will be 8 hours, excluding applicable parked time. These are both available 24 hours a day, 7 days a week, 365 days a year, including bank and public holidays.
7.3 “BT Maintenance Class 5” operates 24 hours a day, seven days a week (including UK public and bank holidays). GAMING BROADBAND LTD will acknowledge receipt of a fault report will clear the fault within 48 clock hours (“Requisite Period”) of receipt of the fault report, excluding any allowable parked time. If an engineering visit by BT to a Site is required, then BT will respond during “BT Normal Working Hours”.
7.4 “BT Maintenance Class 4” operates 24 hours a day, seven days a week (including UK public and bank holidays). For engineering visits by BT to a Site (GAMING BROADBAND LTD or end user premises or a BT exchange) 0800-1800 Monday to Sunday including UK regional public and bank holidays) but for FTTC, Saturdays and Sundays will be subject to availability and not guaranteed. GAMING BROADBAND LTD will respond to a fault within 4 clock hours of receipt of the fault report and will clear the fault within 24 clock hours of receipt of the fault report, excluding any allowable parked time.
7.5 “BT Maintenance Class 14” which operates for both the reporting of faults and clearance of faults, 24 hours a day, seven (7) days a week including UK bank and public holidays. GAMING BROADBAND LTD will clear the fault within 8 hours of receipt of the fault report, excluding any allowable parked time.
7.6 The target time to repair is measured from when GAMING BROADBAND LTD first detects the fault or is notified of it by the Customer of a fault, to the time when the Customer is informed of the resolution via email or a phone call.
7.7 If an engineer visit is required, the clock will be parked from the time of booking until the scheduled appointment. Parked time is defined as any period where GAMING BROADBAND LTD cannot progress the repair of a fault.
7.8 Some engineering visits either by GAMING BROADBAND LTD or their agents may be chargeable. Any charges will be detailed before the engineer is booked.
7.9 If an engineer visit is scheduled and does not go ahead through no fault of GAMING BROADBAND LTD, an abortive charge to be notified to the Customer may be levied.
8.0 The target fix times will be those of Openreach’s “Service Maintenance Levels for SoGea Broadband” in place at any time (currently as follows):
(a) Level 1 – clear by 23.59 day after next, Monday to Friday, excluding public and bank holidays (for example report Tuesday, clear Thursday);
(b) Level 2 – clear by 23.59 next day, Monday to Saturday, excluding public and bank holidays (for example, report Tuesday, clear Wednesday);
(c) Level 3 – report 13.00, clear by 23.59 same day. Report after 13.00 clear by 12.59 next day, seven days a week, including public and bank holidays; and
(d) Level 4 – clear within 6 hours, any time of day, any day of the year.
8.1 The target times in this paragraph 7 shall not be of the essence of the Contract.
8 EXCLUSIONS
- Broadband is dependent on an underlying PSTN service. If the fault is found with the underlying service, a separate Services specific schedule/appendix will apply to that fault where GAMING BROADBAND LTD does not supply the PSTN, the above Broadband Service schedule does not apply.
- The service level agreement in this Schedule 4 does not apply where the fault is a result of the CPE or customer configuration.
- All service levels will be suspended when BT or other network partners declare a major incident or implement the “MBORC” (Matters Beyond Our Reasonable Control) process.