ABOUT THIS MANAGED SERVICES AGREEMENT
1. How this agreement is formed
1.1. Fluent (“we/us”) supply communications and IT services (“Services”) to its customers subject to the terms of this Agreement. The Agreement comprises these General Terms applicable to all customers, Service Specific Terms applicable only to particular parts of the Services as specified, the Sales Order and/or Order Form, any specific Support Services Agreement that we may agree with you from time to time, and any supplementary terms, guidance or rules that we publish relating to your use of the Services.
1.2. A Sales Order is your offer to purchase the Services from us in accordance with this Agreement and our Approval of a Sales Order is our acceptance of your offer. When a Sales Order is entered into, you will be asked to agree to these terms and conditions. You can view them at any time by visiting the Terms and Conditions page of our Website, https://fluent-group.co.uk/terms-and-conditions. Usually, your agreement will be given by signing an Order Form. However, if we supply you with the Services or any part of them and you proceed to use them, even if a Sales Order is not completed or an Order Form not signed, you do so on the basis of, and are deemed to have agreed to these terms and conditions (in the form published on our Website at the time of our supply).
1.3. From time to time we may publish new versions of or make changes to the Agreement. If we do this, we will notify you (for example, by inserting a notice on an invoice that we send to you). We will always give you as much notice as is reasonably practicable of any changes, and if such changes may be materially detrimental to you then that notice period will be at least 30 days. If you wish to object to any such new or varied terms then you will need to contact us during such 30-day period by calling 01892 532 373 or writing to Harley House Farningham Road Crowborough TN6 2JD otherwise you will be deemed to have accepted them with effect from the end of such 30-day period.
2. How we provide the Services
2.1. We will use reasonable endeavours to provide the Services:
2.1.1. subject to technical and commercial feasibility
2.1.2. by any dates agreed with you, but you agree that such dates are estimates only and time is not of the essence in our performance of the Services
2.1.3. with the reasonable care and skill that may be expected from a competent managed service provider
2.1.4. and, in all cases in accordance with this Agreement, however, you acknowledge and agree that it is technically impracticable to provide the Services entirely fault free or on an uninterrupted basis, and neither we nor any Service Provider or Network Operator undertakes to do so. Subject to clauses 13.3 and 21 of these General Terms, we do not accept any liability to you in respect of any failure to provide the Services completely error-free or uninterrupted.
3. Certain limitations and qualifications in relation to our provision of the Services
3.1. We cannot guarantee the continuing availability of any item of Equipment, and you acknowledge that we may be dependent upon third parties for its provision. Accordingly, we may add to, substitute and/or discontinue any item of Equipment and/or to change the specification of the Equipment at any time.
3.2. The following non-exhaustive list of technical limitations and restrictions may affect certain parts of the Services and we will not be liable to you or to any End User for any failure to notify you specifically of the same, nor for our inability to supply the Services (or any part of them) as a result of the occurrence of any such circumstance:
3.2.1. technical limitations within a Network, which may affect a part of the Services or the interoperability between certain parts of the Services, and which may not become apparent until after installation (whether immediately or sometime later). In such event, we may have to withdraw a certain part of the Services. If this happens, we will provide as much notice of withdrawal to you as is reasonably practicable.
3.2.2. there are certain services or products that may be unavailable and/or incompatible with a particular Network.
3.2.3. the performance of some equipment at the Site, including proprietary systems that belong to you or to third parties, may be adversely affected by the Services or a part of them;
3.2.4. there may be individual technical or geographical limitations that inhibit or prevent the installation and provision of the Services or part of them in your area; and
3.2.5. manufacturer’s equipment or software and hardware or licenses which require a firmware fix, upgrade or update due to an exposed or published or inherent vulnerability.
3.3. You agree to co-operate fully with us and/or any Service Provider or Network Operator (and our or their employees, agents and/or sub-contractors) in respect of the installation of and ongoing supply of the Services or part of them (including any installation and/or conversion services required). The installation of the Services is dependent on your providing us with the information and co-operation that we reasonably request from you from time to time.
3.4. We may make alterations to any aspect of the Services (or their description) including conversions, shifts, reconfigurations and renumbers, withdrawal, or introduction of features, which may include
changes in the technical specification of the Services or components of them. These may include service or system upgrades and/or major changes to the Services and Equipment. Such alterations may result in temporary disruption to the relevant part of the Services. Where such changes are within our control, we will use reasonable endeavours to minimise any disruption to you and, where practicable, will give you prior notice of such alterations.
3.5. From time to time it may be necessary for a third party such as a Service Provider or Network Operator to contact you in connection with our obligations under this Agreement, and by using the Services you consent to such contact.
PAYING FOR THE SERVICES
4. Charges and payment
4.1. We will charge you for your use of the Services and you agree to pay the Charges in accordance with this Agreement.
4.2. The Charges will include a fixed Periodic Fee, Variable Charges which will vary depending on the nature and use of the Services provided. If no Periodic Fee or Variable Charges are specifically stated on your Order Form or otherwise in writing by us, then they will be charged at our then current rate as notified to you in writing from time to time.
4.3. You agree to pay us all Charges in accordance with this Agreement. You acknowledge that we may also charge you certain one-off charges, such as when you request a variation to the Services, or the Services are moved or you request us to move them to another provider or a survey in advance of the supply of Services and then you do not proceed with the order and we are liable to pay the costs of such survey or any cancellation costs charged by third party suppliers, including Charges for Equipment, any reconnection fees and/or a Termination Fee if you tell us you want to terminate this Agreement before the expiry of the Minimum Period or any Subsequent Period. You agree to pay such one-off charges on demand.
4.4. In the event that any Equipment and/or Software is damaged, destroyed, lost or stolen then you agree to pay the applicable replacement or repair charges at our then current rate as notified to you in writing from time to time.
4.5. In the event that any invoice that we send to you contains an error (howsoever arising) such that you are invoiced less than you owe, then we may send you a further invoice for the difference between the amount so invoiced and the amount that ought to have been invoiced had the error not been made, and you agree to pay any such invoice on demand.
4.6. In the event that we omit or delay the invoicing of any Charges (“Delayed Charges”) we may invoice you at a later date (and you will continue to be liable to pay us) for them.
4.7. You agree to pay the Charges and any other sums due to us within 14 days of the date of our invoice (or by such other date as is stated on an invoice). Unless any other method of payment is agreed with us in writing, the Charges shall be paid by direct debit, and you agree to provide us on demand with all information necessary from time to time to allow payments to be made by such method.
4.8. If you do not pay to us any sum due in accordance with this Agreement by the due date for payment, we may charge and you agree to pay interest, a further fixed sum, and reasonable costs, in each case as provided for under the Late Payment of Commercial Debts (Interest) Act 1998.
4.9. We may at any time increase the Charges and notify you of such increase at the time of Charges that affect you:
4.9.1. if the cost to us of supplying the Services increases for any reason, by the amount of such increase;
4.9.2. pursuant to a direction from any legal or regulatory body or competent authority with jurisdiction over us, by the amount set out or otherwise required by such direction;
4.9.3. by a percentage equal to the percentage increase in either the Retail Price Index or the Consumer Price Index (whichever is the greater) for the relevant year or, if greater, by a percentage equal to the percentage increase in the Retail Price Index or the Consumer Price Index since the date of the last increase in Charges (whichever is the greater).
4.10. Unless you notify us in writing that you require paper invoices, we will send you invoices (or a web link to such invoices) electronically to the contact email address specified on the relevant Order Form or otherwise notified to us from time to time.
4.11. We may charge you, and you agree to pay, additional administrative fees at our then current rate as notified to you in writing from time to time where:
4.11.1. a direct debit is unpaid;
4.11.2. you make payment by a method other than direct debit;
4.11.3. you receive paper invoices from us; and/or
4.11.4. we write to you chasing payment of an overdue invoice.
4.12. If you wish to query or dispute any Charges, you will need to raise them with us within 60 days of the date of the relevant invoice and in accordance with our Code of Practice on Complaint Handling and Dispute Resolution, which is published on our Website.
4.13. You agree to pay to us all amounts properly due and payable under this Agreement in full and without making any deduction, withholding, counterclaim or set off except as required by law. Without limiting any other rights or remedy, we may set off any amount that you owe to it under this Agreement or any other agreement against any amount that we owe to you.
5. Fraudulent uses of the Service
5.1. You are responsible for taking reasonable steps to mitigate the risk of the Services being used fraudulently, including:
5.1.1. ensuring the secure implementation and management of your systems;
5.1.2. maintaining security and confidentiality of authentication details that you require to use the Services or any part of them, and disabling access to any accounts that are compromised;
5.1.3. mitigating exposure to any suspected or known security breach by resetting passwords, implementing adequate control and security (to a level considered to be industry standard) over the Services designed to prevent viruses, logic bombs or worms, “trojan horses” and any other types of disruptive, destructive or nuisance programs and/or any calls generated by rogue diallers or hackers; and
5.1.4. obtaining at your own expense professional security advice about secure use of the Services.
5.2. You must notify us immediately on becoming aware of any Fraud affecting the Services supplied to you. On being notified by you that any such event has occurred, we will attempt to suspend the relevant part of the Services as soon as possible, but you acknowledge that we are reliant on third parties in relation to the supply of certain Services and therefore there might be a delay between the notification of the Fraud to us and the suspension taking effect, which we cannot control.
5.3. You are solely responsible to set up and maintain security independently of our supply of the Services to you and we do not accept any liability whatsoever for any costs incurred as a result of a breach of security. You will be liable for all Charges incurred in connection with any Fraud, Artificial Inflation of Traffic, or other improper use of the Services until the affected Services are suspended.
6. How we mitigate credit risk
6.1. We will allocate a Credit Limit to you, which we may change at our discretion from time to time without prior notice. If you accrue Charges that exceed the Credit Limit, then we may:
6.1.1. demand immediate payment of the amount of Charges that exceed the Credit Limit; and/or
6.1.2. suspend the Services (including any installation of them) until you have paid to us such excess sum.
6.1.3. You will remain liable to pay all the Charges incurred under this Agreement even if they are incurred during or arise out of a period of suspension.
6.2. We may undertake certain credit checks against you and you acknowledge and consent to our passing information about you to credit reference agencies and/or any third party who may be supporting us in performing searches with credit reference agencies relating to your creditworthiness and/or that of your owners, directors, officers, employees and assigns (and you agree to procure that your owners, directors, officers, employees and assigns consent to the same). You agree to supply or procure the supply of all information requested by us for the purpose of a credit search and consent to our disclosing such information to a Court or law enforcement, legal or regulatory body if required by law or in connection with enforcing our rights under this Agreement.
6.3. In certain circumstances, we may require you to provide us with a deposit, to be used as security against any Charges you have incurred or may incur in your use of the Services. This deposit will be returned to you when we are satisfied that payment has been made to us of all outstanding Charges, or upon termination of this Agreement if no Charges remain outstanding at termination (in which case the deposit shall be applied against such Charges before any balance is returned to you), whichever circumstance is the later. We will not pay you any interest on any deposit that we hold. Examples of the circumstances where we may require a deposit are where:
6.3.1. a periodic credit check against you reveals scoring that we determine is in our sole opinion unacceptable;
6.3.2. a Court judgment is issued against you in relation to an unpaid debt;
6.3.3. you incur Charges or other costs in your use of the Services that we reasonably consider to be abnormal;
6.3.4. you do not pay any Charges incurred under this Agreement by the due date for payment; and/or
6.3.5. we suspend all or any of the Services pursuant to clause 12.
HOW YOU USE THE SERVICES
7. Your undertakings to us
7.1. You are responsible for the safe use of the Services. Without prejudice to the generality of the foregoing, you undertake to:
7.1.1. grant to us and any Service Provider or other third party who requires access (prior to installation or delivery if necessary) rights of access to the Site (or third party premises if necessary), data and other facilities (including obtaining any necessary licences, waivers or consents, such as landlord, wayleave or access consents) as we or such third party reasonably require to enable us to perform our obligations or exercise our rights under this Agreement, including to reclaim any Equipment post- termination (and where necessary you agree to procure all necessary consents and permissions from third parties to allow the same);
7.1.2. advise us in writing of all health and safety rules and regulations and any other reasonable security requirements applicable at the Site, and restore at your own expense the condition of the Site (or third-party premises) after installation or conversion work is completed (including any redecoration work that is required);
7.1.3. prepare the Site (or third party premises) at your own cost in accordance with our reasonable instructions so that the Services can be provided and/or the Equipment can be installed and in order to ensure the health and safety of our (or a Service Provider’s) employees, agents or sub-contractors whilst at the Site (or third party premises), to configure any pre-existing equipment or infrastructure, and to provide a suitable and safe working environment for such persons acting on our behalf at the Site or third party premises;
7.1.4. make available a suitable place and conditions and connection points required for the provision of the Services supplied in accordance with our or a Service Provider’s reasonable instructions;
7.1.5. use the Services at all times in accordance with all applicable law, licences or regulations and such conditions, codes or procedures (including any acceptable use policies that we may publish from time to time) as shall apply to your use of the Services (and you acknowledge that you are responsible for informing yourself of the same), including those that we or a Network Operator may notify you of from time to time or publish on the Website;
7.1.6. ensure that any Customer Equipment or other telecommunications apparatus that you use in conjunction with the Services meets all legal and regulatory requirements, is approved for use with the Services and conforms to any specific requirements (including any operating system/housing or infrastructure specifications) that we notify to you;
7.1.7. provide to us, a Service Provider and/or a Network Operator all assistance, materials and accurate information that we or they require in connection with providing the Services or any action or correspondence that we or they are engaged in with a regulator or other competent authority, or which is required in pursuance of their respective obligations as telecommunications service providers or network operators;
7.1.8. report to us without delay any faults affecting the Services as and when they occur, and to pay an abortive visit fee (at our then current rate as notified to you in writing from time to time) if we attend the Site to attend to any fault but it is reasonably determined to be attributable to the damage, theft or removal of equipment occurring on the Site prior to our visit; and
7.1.9. always use the Services in a manner that is consistent with a reasonable customer’s good faith use of them.
7.2. You agree that you will not (and will procure that none of your directors, officers, employees, sub-contractors, delegates or assigns and no End Users will):
7.2.1. use the Services in such a way that communicates, delivers, knowingly receives, uploads, downloads, uses or re-uses any material or information that is intended to be a hoax call to any emergency service, that is defamatory, offensive, abusive, indecent, obscene or menacing, which sends unsolicited advertising or promotional material, which does or is intended to cause annoyance, inconvenience or worry to any person, which in our reasonable opinion brings our name or business into disrepute or makes us liable for a claim by a third party or which in any way causes damage or disruption to the Network, the Network Operator or the Services or any other services or systems operated by us or supplied by us to a third party;
7.2.2. use the Services in a manner that constitutes a violation or infringement of the rights of any other person or is prejudicial to the interests of our business, our customers’ use of the Services or the business of a Service Provider or Network Operator, or otherwise in a manner that is likely to have an adverse impact on other users’ service performance or use of the Network; or
7.2.3. use the Services for any purpose other than that for which it was designed or intended or specified in any materials or documentation that we provide to you.
7.3. If you do not take delivery or allow installation of the Services on any agreed installation date or delivery date, then we may arrange storage of any Equipment at your risk and cost and may also charge a cancellation fee (at our then current rate as notified to you in writing from time to time) together with any other reasonable costs that we incur as a result of such cancellation.
7.4. If any act or omission on your part causes you to breach the provisions of this clause 7 then we will not be responsible for any delays, increased costs or other consequences arising from such breach, and you agree to indemnify us and hold us harmless against any costs, claims, expenses, or other liabilities that we incur as a result of such failure.
7.5. By continuing to use the Services, you represent to us that:
7.5.1. you are procuring the Services solely for your and your directors’, officers’ and employees’ own use and that you will not resell or otherwise act as any form of distributor or agent of another party in respect of your use of the Services;
7.5.2. the person whose signature and name is entered on any Order Form signed by you or on your behalf is a Director (if you are a company) or is otherwise duly authorised to execute the Order Form on your behalf; and
7.5.3. all your details that were provided in respect of the Sales Order by the person acting on your behalf are accurate and up to date, and you will notify us immediately if any such details change during the term of this Agreement.
7.6. To help us provide a quick response in the event of a fault, you will accept and pay any Service Provider, Network Operator, Openreach or any third-party charges that are incurred to fix a fault where it results from your internal equipment or where you have missed an appointment and we have been charged by the network or incurred charges.
8. Equipment used in connection with the Services
8.1. Subject to any Order Form or any Service Specific Terms, all Equipment supplied to you as part of the Services remains our property or, where indicated, that of the relevant Service Provider at all times unless otherwise expressly agreed.
8.2. You will not add to, modify, carry out any maintenance on or in any way interfere with Equipment, nor allow anyone else to do so (other than someone authorised by us or by a Service Provider).
8.3. You are solely responsible for the safekeeping of all Equipment supplied to you and shall be liable to us for any loss of or damage to it (except where such loss or damage is due to fair wear and tear or is caused by us or anyone acting on our behalf) and you will remain liable for all Charges accrued during any period of loss, theft, damage or other inability to use the Equipment.
8.4. You will ensure that any Customer Equipment connected to or used in conjunction with Equipment will bear the European consumer equipment standards “CE mark”. You will ensure that all Customer
Equipment is technically compatible with the Services and Equipment supplied and used in compliance with all relevant instructions and safety and security procedures.
PROVISIONS RELATING TO CONFIDENTIAL INFORMATION , PERSONAL DATA, AND INTELLECTUAL PROPERTY
9. Confidentiality
9.1. Both you and we undertake to the other to keep confidential the terms of this Agreement and all Confidential Information (written or oral) concerning the business and affairs of the other that are obtained or received because of the discussions leading up to the entering into this Agreement and during its term, save that which is:
9.1.1. in the public domain (other than as a result of a breach of this Agreement);
9.1.2. already known to the receiving party and the receiving party has written evidence of its prior knowledge;
9.1.3. lawfully received from a third party and/or ordered to be disclosed by any Court or other tribunal or regulatory authority of competent jurisdiction provided that the party making such disclosure shall (where possible) notify the party to whom the confidential information belongs in advance of such disclosure and take reasonable steps to minimize the impact and extent of such disclosure,
9.1.4. or, (in the case of confidential information belonging to you and disclosed to us) which we determine to be necessary to disclose to our employees, contractors, agents, Service Providers, Network Operators, or our other Group Companies as we determine to be necessary for the provision of the Services or enforcing our rights under this Agreement.
10. Data protection
10.1. To the extent that Customer Data is processed by us and our Group companies, Clauses 10.2 to 10.5 shall apply. In this Clause 10, "Process", "Personal Data" and "Controller" shall have the meaning specified in the Data Protection Laws.
10.2. In the context of the Agreement, you and we acknowledge that each party acts as a Controller acting alone with respect to the Customer Data which it Processes, and we and you each agree to comply with our respective obligations under Data Protection Laws.
10.3. We and our Group companies shall only Process Customer Data:
10.3.1. in connection with the provision of the Services to you and End Users;
10.3.2. to incorporate Customer Data into databases controlled by us or our Group Companies for the purposes of administration, service provision, billing and reconciliation, verification of your identity and solvency, maintenance, support and product development, fraud detection and prevention, and sales, revenue, and customer analysis
10.3.3. for marketing purposes such as sending you information about products, services and offers offered by us or our Group Companies
10.3.4. for such other purposes described by or compatible with our Privacy Policy and Data Protection Statement; and
10.3.5. as permitted or otherwise required by applicable law.
10.4. You warrant and represent that you have obtained all necessary consents and/or authorisations to enable us to Process Customer Data lawfully and in accordance with Data Protection Laws for the purposes contemplated under the Agreement.
10.5. You shall not do, cause, or permit to be done anything which may cause or otherwise result in a breach by us or our Group Companies of Data Protection Laws. We and/or our Group Companies shall not be held liable or deemed to be in breach of the Agreement to the extent that our or their failure to perform any obligation under the Agreement is caused by your failure to comply with Clauses 10.2 to 10.5.
10.6. If a supervisory authority or court finds that we and/or our Group companies are not Controllers in relation to Customer Data, then we and you shall replace Clauses 10.1 to 10.5 to the extent required to comply with Data Protection Laws.
11. Intellectual property
11.1. You acknowledge that all Intellectual Property Rights in all data, reports, drawings, specifications, designs, plans, programs, course materials, marketing collateral, advertising, descriptive matter or other material produced, provided, made available or acquired by us in the course of the performance of the Services shall vest in us and remain our property or that of our licensors, suppliers or sub-contractors, unless expressly agreed otherwise by us in advance and in writing. No copies may be made of such material unless expressly agreed otherwise by us in advance and in writing.
11.2. We warrant to you that the provision of the Services in accordance with the terms of this Agreement will not infringe the Intellectual Property Rights of any third party.
11.3. We will indemnify you from all liabilities (including reasonable legal costs) incurred by you as a result of any finding in favour of a third party that alleges that the provision of the Services or any portion thereof infringes their Intellectual Property Rights, provided that you:
11.3.1. give us prompt written notice of such claim;
11.3.2. give us reasonable assistance and sole authority to conduct and/or settle all negotiations and litigation and defend and/or settle such claims. For the avoidance of doubt, the costs incurred or recovered in such negotiations and litigation shall be at our expense; and
11.3.3. have no dealings with such third party in relation to its claim and make no admissions in relation to such a claim without our prior written consent.
11.4. If any infringement claim is made of the type referred to in clause 11.3, or in our opinion is likely to be made, we shall have the right, at our option to either:
11.4.1. obtain for you the right to continue using the item in question or to receive the Services;
11.4.2. replace or modify the item in question or the Service so it ceases to be infringing; or
11.4.3. as a last resort, grant to you a credit for that portion of the Charges attributable to the item or Service at issue in such claim, as depreciated, and accept such item’s return or termination of the Service affected.
11.5. We shall not have any obligation to indemnify you if the alleged infringement is based upon:
11.5.1. use of a Service, other than in accordance with the terms of the Agreement and any other instruction we may give concerning its use; or
11.5.2. use of the Service in an unauthorised manner for which the Service is not designed.
11.6. Neither we nor any third-party licensors shall have any liability to you in respect of any infringement, alleged infringement, violation, or misappropriation of any Intellectual Property Rights except as expressly provided in this clause 11.
11.7. You agree to indemnify us against any action, claim, loss, damage, proceedings and/or expenses (including legal costs) suffered or incurred by us or any of our Group Companies arising from any act during your use of the Services that is directly or indirectly related to infringement of our or any third party’s Intellectual Property Rights.
WHEN WE MAY SUSPEND THE SERVICES
12. Suspension of Services
12.1. Without prejudice to any other right that we may have to suspend and/or terminate the Services, we may suspend the Services (in whole or part) until further notice and without liability to you, with immediate effect in the following circumstances:
12.1.1. on the occurrence of any of the events listed in clause 16 (other than clauses 16.1.1 and 16.1.3, which circumstances are separately described in clauses 12.1.4 and 12.1.5 below, respectively)
12.1.2. where we are obliged to comply with an order, instruction or request of Government, an emergency services organisation, or other administrative or competent authority or for your own security
12.1.3. where we, a Service Provider or a Network Operator needs to carry out work to upgrade or maintain anything relating to the Services, including the Network, the Equipment, and the telecommunications and information technology system which we, the Service Provider and/or the Network Operator operate or subcontract the operation of
12.1.4. if you do not pay any sum due and owing to us within 60 days of the due date or we have reasonable grounds to consider that you will not or are unable to make any payment which is due or is to fall due to us
12.1.5. where you are in breach of any provision of this Agreement
12.1.6. we become aware of or suspect any unusual or excessive use of the Services and/or any Fraud; and/or
12.1.7. where we are entitled to suspend the provision of any other service under the terms of any other agreement that we have entered in to with you.
12.2. During any period of suspension referred to above, you will remain liable for all Charges payable in accordance with this Agreement.
12.3. You will reimburse to us all reasonable costs and expenses incurred in connection with a suspension pursuant to clause 12.1 and/or the recommencement of the provision of the Services, in the form of a Suspension Administration Fee at our then current rate as notified to you in writing from time to time.
12.4. If we exercise our right to suspend the Services or part of them pursuant to clauses 12.1.2 or 12.1.3 then we will always seek to give prior notice of such suspension to you whenever lawful and where we consider it to be practicable and appropriate to do so.
12.5. Subject to the provisions of clause 13, we will not be liable for any loss, damage or inconvenience suffered by you as a result of any suspension made pursuant to this clause 12, except to the extent that such suspension is solely and directly attributable to our gross negligence.
THE EXTENT OF OUR LIABILITY TO YOU
13. Limitation of liability
13.1. Except as set out in clause 13.3, we will not be liable to you at all in respect of any:
13.1.1. breach by you of this Agreement (or losses you suffer as a result of using the Services in breach of this Agreement);
13.1.2. loss of actual or anticipated profit, savings, business, revenue or commercial loss;
13.1.3. loss of time or opportunity;
13.1.4. business interruption or wasted expenditure;
13.1.5. loss, disclosure or corruption of data;
13.1.6. loss or damage caused by viruses or unauthorised use of, or attempts to access, the Services or any of your devices;
13.1.7. lack of availability or outage of IT, Connectivity Services and/or communications systems not provided by us;
13.1.8. any failure of safety, security or other alarm systems due to incompatibility with the Services, or any other reason which is not due to our fault or neglect;
13.1.9. damage to your reputation, and/or any loss that we could not reasonably have foreseen and any other indirect or consequential loss or damage whatsoever, save that nothing in this clause 13.1 shall operate to exclude the losses of the type described in clauses 13.2.1 or 13.2.2.
13.2. Notwithstanding any other provision of this Agreement but subject always to clause 13.3, our maximum aggregate liability to you under this Agreement in any 12-month period, in respect of all and any claims (whether one or more such claims) for direct or indirect loss or damage howsoever arising, including
13.2.1. direct loss of or physical damage to any physical property arising from our negligence; and/or
13.2.2. direct losses reasonably incurred as a result of having the Services supplied to a similar standard by an alternative supplier;
shall in no circumstances whatsoever exceed the amount that is equal to the aggregate amount of Charges paid or payable by you to us in the preceding 12 month period (or, during the first year of this Agreement, the Charges that would become payable over such first full year).
13.3. Nothing in this Agreement (including this clause 13) shall exclude or limit the liability:
13.3.1. of either party for fraud, death or personal injury resulting from the negligence of the other party or its employees acting in the course of their employment;
13.3.2. of either party for any proven fraudulent misrepresentation;
13.3.3. of you under the indemnities given by you to us under this Agreement;
13.3.4. of you to pay the Charges due under this Agreement; or
13.3.5. for anything else for which you or we cannot at law limit or exclude liability.
13.4. The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings, and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
13.5. We shall not be liable for the acts, omissions, or failures of:
13.5.1. Service Providers or other providers of telecommunication services to us in relation to our provision of the Services including loss of Connectivity Services; or
13.5.2. you or anyone acting on your behalf.
13.6. Subject to clause 13.3, you will indemnify us against any and all losses, damages, costs, claims, expenses and/or other liabilities which we incur directly or indirectly as a result of any breach, act or omission in relation to this Agreement howsoever arising and/or as a result of any action brought by you against a Service Provider.
HOW ANY DISPUTES WILL BE DEALT WITH
14. Dispute Resolution
14.1. We will use all reasonable endeavours to attempt to resolve any dispute that arises in accordance with our Code of Practice on Complaint Handling and Dispute Resolution, which is published on our Website.
14.2. If the dispute cannot be resolved by the parties within eight weeks of your raising the dispute with us, then you may refer the matter to:
14.2.1. Ombudsman Services: Communications, via the website (https://www.ombudsman-services.org/communications.html) or by telephone on 0330 440 1614; or
14.2.2. OFCOM, the communications regulator via the website (https://www.ofcom.org.uk) or by telephone on 020 7981 3040 or 0300 123 3333.
14.2.3. Any dispute must be submitted in writing to our Head Office at. Harley House, Farningham Road, Crowborough, East Sussex, TN6 2JD
14.3. Nothing in this clause 14 shall prevent you or us from exercising any rights or remedies that may be available in respect of any breach of the provisions of this Agreement.
THE DURATION AND TERMINATION OF THIS AGREEMENT
15. Commencement and duration
15.1. This Agreement commences on the Commencement Date and, subject to any provisions for earlier termination contained in clause 16, shall continue for the Minimum Period and thereafter automatically continue for Subsequent Periods unless:
15.1.1. you are (or have become) a Small Business Customer and we are required to obtain your express consent to the commencement of a Subsequent Period (relating to the supply of broadband or voice and data services only but not any other Services supplied) , in which case this will be made clear to you at the relevant time (but subject always to clauses 15.3 and 15.4);
15.1.2. you give to us, not less than 90 days before the end of a Minimum Period or Subsequent Period (as the case may be), written notice of your intention to terminate this Agreement at the end of that Minimum Period or Subsequent Period, in which case this Agreement will terminate at the end of that Minimum Period of Subsequent Period (as the case may be); or
15.1.3. we give to you (at any time) one month’s written notice to terminate this Agreement, whereupon this Agreement shall terminate one month after we give you such notice.
15.2. Where, during the term of the Agreement, you request a change or addition to the Services, we may extend the remaining unexpired fixed term of this Agreement such that it is equal to the Minimum Period or a Subsequent Period (whichever period you are in at the time of requesting such change or addition) save where you are requesting such change or addition as a direct result of our termination of a particular part of the Services pursuant to clause 15.1.3.
15.3. Where a Minimum Period or Subsequent Period expires and no Subsequent Period (or further Subsequent Period, as the case may be) commences pursuant to clause 15.1.1, but you continue to use the Services after such expiry (for any reason whatsoever), then you will continue to be bound by the terms of this Agreement in respect of your continued use of the Services (including the obligation to pay all Charges) until we terminate the Services (at any time at our discretion).
15.4. If at the Commencement Date (or the commencement of a Subsequent Period, as the case may be) you are not a Small Business Customer but during such period become one, or vice versa, then it is your responsibility to notify us in accordance with clause 18 (and to provide such evidence of your change of status as we may reasonably request). If you do not notify us within 90 days of the end of the Minimum Period (or Subsequent Period, as the case may be) that:
15.4.1. you have become a Small Business Customer, then we shall be entitled to continue to treat you as not being a Small Business Customer for the purposes of clause 15.1.1; or
15.4.2. you were a Small Business Customer but have ceased to be one, and you seek to enjoy rights that you would not otherwise have had if you had notified us of your change of status, then you agree to compensate us in respect of any losses we suffer as a result of your failure to notify us of your change of status.
16. Termination
16.1. Without prejudice to any other rights or remedies that we may have, we may terminate this Agreement with immediate effect (and, unless we determine that it is unlawful, inappropriate, or impracticable, on giving written notice to you) if:
16.1.1. you fail to pay all or any Charges by the due date and fail to remedy such breach within two Business Days of a written notice from us requesting such late payment;
16.1.2. any agreement between us and one of our suppliers (including any Service Provider or Network Operator) is suspended or terminated or expires without being renewed, or where the supply of Services under such agreement is suspended or terminated or ceases, and/or where such provider is not permitted by law to supply the Services which affects the supply of or the cost of supplying the Services;
16.1.3. you are in breach of any obligation in this Agreement and, in the case of any breach capable of remedy, fails to remedy the breach within five Business Days of service of written request by us to do so;
16.1.4. you repeatedly breach any term of this Agreement in such a manner as to reasonably justify the opinion that your conduct is inconsistent with your having the intention or ability to give effect to this Agreement and use the Services in good faith, and/or the effect of such persistent breaches is to amount to a material breach;
16.1.5. we become aware or reasonably suspect that Fraud, Artificial Inflation of Traffic or any other improper use of the Services has taken or is taking place;
16.1.6. we have reasonable grounds to consider that you are or have been involved or connected with the commission of any criminal offence or other civil wrongdoing involving dishonest conduct (whether or not proceedings for the same are brought or, if brought, result in a conviction) or have otherwise behaved in a manner that in our opinion does or could adversely affect our goodwill, brand or reputation or that of any of our Group Companies;
16.1.7. we cease to be authorised to provide the Services or are otherwise prohibited from providing the Services by any competent authority or by some other regulation or law from supplying the Services, or otherwise are no longer able to provide the Services as a result of factors beyond our reasonable control;
16.1.8. you are or will imminently become Insolvent;
16.1.9. your direct debit is cancelled;
16.1.10. you fail to provide a deposit within ten Business Days of a request to do so made pursuant to clause 6.3; and/or
16.1.11. we have suspended one or more Services pursuant to clause 12 (other than 12.1.3) and such suspension has continued for at least five days.
16.2. Either of us may terminate this Agreement by written notice to the other and with immediate effect if:
16.2.1. we are in default of a material obligation under this Agreement and, in the case of any breach capable of remedy, fails to remedy the breach within 28 days (or such longer period as may be agreed between the parties) from receipt of written notice to do so from you; or
16.2.2. either party ceases to carry on as a business.
16.3. For the avoidance of doubt, cancellation of a direct debit shall not of itself constitute notice to terminate this Agreement.
16.4. Where you seek to terminate this Agreement prior to the expiry of the Minimum Period or a Subsequent Period or otherwise in a manner not in accordance with clauses 15.1.2 or 16.2.1, you agree to pay us a Termination Fee on demand, save that no Termination Fee shall be payable by you in a case where any variation to the Agreement pursuant to clauses 1.3 or 4.8 entitles you to terminate the Agreement on 30 days’ notice without paying a Termination Fee and you exercise that right.
17. Consequences of termination
17.1. Upon the expiry or termination of this Agreement we will cease to supply the Services and you agree to:
17.1.1. immediately pay to us all sums invoiced by us that remain outstanding plus any applicable interest and, in respect of any unbilled Charges, we will invoice you for such Charges, which you agree to pay on demand;
17.1.2. promptly pay to us any applicable Termination Fee; and
17.1.3. return all equipment (including any Equipment) to us that you do not own or have any legal right to retain at the date of termination of this Agreement.
17.2. Any termination of this Agreement shall be without prejudice to the accrued rights of the parties on the date of such termination, and to the continuation in force of all provisions of this Agreement which expressly or implicitly survive such termination and expiry. For the avoidance of doubt the provisions of clauses 9 (Confidentiality) (in so far as it relates to our Confidential Information), 11 (Intellectual Property) and this clause 17 (Consequences of Termination) will survive termination or expiry of this Agreement.
CONTACTING EACH OTHER
18. Day to day contact
18.1. For day-to-day queries or if you wish to discuss any aspect of the Services, you can contact us Monday to Friday 8:00 to 18:00 by telephone on 01892 532 373, or by email at info@fluent-group.co.uk. Please note we will not respond to your enquiry outside of these hours.
18.2. You must keep us updated with any changes to your business name, number, address, and other material company information (including whether you become, or cease to be, a Small Business Customer) and agree to indemnify us in respect of any Liability arising out of your failure to do so.
19. Formal communications or legal notices
19.1. Save as otherwise expressly stated in the Agreement, any formal notice to be given or made under or in connection with this Agreement by us to you, whether required to be written or otherwise will be sent by post or email, to any address, email address, fax, or phone number that you have specified in a Sales Order and/or on an Order Form or otherwise given to us in writing. For the avoidance of doubt this clause 19.1 shall not prevent us from publishing information generally to our customers by posting such information on and making updates to the Website.
19.2. Save as otherwise expressly stated in the Agreement, any formal notice given or made under or in connection with this Agreement by you to us, whether required to be written or otherwise shall be delivered to us by post or by hand to our registered office from time to time, addressed for the attention of the Legal Department.
19.3. A notice sent pursuant to this clause 19 will be deemed received and properly served 24 hours after it is sent other than in the case of a notice sent by post, which shall be deemed to be delivered two Business Days after the date of posting.
OTHER LEGAL PROVISIONS
20. Assignment and other dealings
20.1. You may not assign, charge, sub-contract, transfer, or deal in any other manner with all or any of your rights or obligations under this Agreement without our prior written consent.
20.2. We may at any time assign, transfer, delegate, subcontract, or deal in any other manner with all or any of our rights or obligations under this Agreement without at any time being required to consult with you or requiring your consent.
21. Force majeure
21.1. Other than in respect of your obligations to pay the Charges, which shall apply notwithstanding the provisions of this clause 21, neither of us shall be liable to the other for any breach of this Agreement or failure or delay to perform any obligation in this Agreement where such breach or failure or delay was the result of Force Majeure.
21.2. In such circumstances the party affected by Force Majeure shall give written notice of its being affected by Force Majeure and the breach of this Agreement or failure or delay that is subject to this clause 21 within 24 hours of such breach or failure or delay, and thereafter shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of breach, failure or delay continues for 45 days, the other party may terminate this Agreement by giving 30 days' written notice to the party affected by Force Majeure or, at our option, we may immediately cease the provision of the Service to you until further notice.
22. General provisions
22.1. This Agreement constitutes the entire agreement between us and, as at the Commencement Date, supersedes all prior negotiations, representations, proposals, understandings, and agreements (whether written, oral or by electronic means) relating to the subject matter of this Agreement. For the avoidance of doubt this Agreement shall supersede and take precedence over any other terms and conditions which you may purport to apply under any purchase order, acknowledgement of delivery or similar document or otherwise, and/or which have been established between the us by a course of dealing.
22.2. Each of us acknowledges that, in entering into this Agreement and the documents referred to in it, we do not rely on any statement, representation, assurance or warranty of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement. In particular, our employees, agents and sub-contractors are not authorised to make any contractually binding representations concerning the Services. However, nothing in these terms and conditions limits our liability for fraudulent misrepresentation.
22.3. Any quotation given by us to you will not constitute an offer and is only valid for a period of seven days from its date of issue.
22.4. If any of the provisions of this Agreement are, become or are held to be invalid, illegal, or unenforceable, the relevant provisions shall be deemed not to be or never to have been or formed part of this Agreement and the validity or enforceability of the remaining provisions shall not in any way be affected or impaired. Furthermore, if any invalid, illegal or unenforceable provision of this Agreement would be valid, legal and enforceable if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it valid, legal and enforceable.
22.5. The failure or delay by us to exercise or enforce any right, power or remedy under this Agreement shall not constitute a waiver of any such right, power or remedy, nor shall any single or partial exercise by any party operate so as to bar the exercise or enforcement thereof or of any right, power or remedy on any later occasion.
22.6. Nothing in this Agreement shall create, or be deemed to create a partnership between the parties.
22.7. For the purpose of section 1(2) of the Contracts (Rights of Third Parties) Act 1999 (the “1999 Act”) the parties agree that they do not intend any term of the Agreement to be enforced by any third party except that our rights pursuant to the Agreement may be enforced by any of our Group Companies, the Network Operator, a Service Provider, or our licensors (as applicable), in accordance with the 1999 Act. Furthermore, the parties agree that:
22.7.1. we may amend and/or vary or terminate all or any part of this Agreement without the consent of any person who is not party to it; and
22.7.2. nothing stated in this clause 22.7 shall affect any third-party right which exists or is available independently of the 1999 Act. Notwithstanding the foregoing sentence, the exclusion in this clause 22.7 shall not apply to any of our Group Companies.
23. Change Control Procedure
23.1 For the purposes of this Agreement a 'Change Request' is:
23.1.1 a request to change (including to cease) any Service or add new services to the Services; or 23.1.2 a request to amend this Agreement or any document attached to it or referred to in this Agreement; or 23.1.3 any proposal which causes or is likely to cause the Client to incur costs or charges outside the scope of the Charges. 23.1.4 A Change Request shall become a 'Change Order' when the requirements of the Change Control Procedure have been satisfied and the Change Request is signed by both parties to signify our approval of the change. 23.2 Change Requests may be originated either by you or us. 23.3 Where we originate a Change Request we shall provide, with the Change Request, details of the impact which the proposed change will have upon the Services and any of your systems or operations which communicate with, or are otherwise affected by, the Services, the Charges and the other terms of this Agreement. 23.4 Where you originate a Change Request, we shall provide you, within 21 days of receiving the Change Request, details of the impact which the proposed change will have upon the Services and any systems or operations which communicate with, or are otherwise affected by, the Services and the other terms of this Agreement. 23.5 Save where otherwise stated in these Terms and Conditions, neither party shall be obliged to agree a Change Request originated by the other. 23.6 The costs of implementing a Change Order shall be borne as set out in the Change Order. 23.7 We shall be entitled to charge you for work undertaken by us in analysing the effect of any proposed Change Request.
24. Non poaching of staff
You covenant with us that you shall not either during the term of this Agreement or within a period of 12 months thereafter directly or indirectly entice away or endeavour to entice away from any Fluent company any person who has during the previous 12 months been employed by Fluent to provide Services in connection with this Agreement.
25. Variation of the Agreement or the provision of the Services
25.1. Subject always to clause 1.3, we may vary this Agreement at any time. Such varied terms shall be available to view and download on the Website and you will be notified that such variations have been made.
25.2. We may vary in our sole discretion the manner in which the Services are provided (without giving prior notice and without liability to you) if we, any of our suppliers, the Network Operator and/or any national or international regulatory body requires such variations in order to maintain and/or improve service quality, to meet any unforeseen circumstances or in order to comply with any applicable law or regulation or for any integration or upgrade of software relating to the Services. Where such variation is necessary, we will seek to give you as much notice as is practicable and whether or not any change to the terms of the Agreement is necessary.
26. Governing law and jurisdiction
This Agreement 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, construed, and take effect by and in accordance with the law of England and Wales. Both you and we irrevocably agree that the Courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
DEFINITIONS AND RULES OF INTERPRETATION
The following Definitions and Rules of Interpretation apply to all parts of the General Terms.
1. Definitions
“Agreement” means this Managed Services Agreement between you and us for the supply of Services (as applicable) which comprises the Sales Order and/or Order Form (as applicable), any applicable Service Specific Terms, the General Terms, any Service Level Agreement, and any supplementary terms or guidance that we publish from time to time, and any variations that we make to them from time to time in accordance with clause 1.3 of the General Terms;
“Approved” means in relation to a Sales Order and/or Order Form, one which has been accepted and approved by us in accordance with the terms of this Agreement, and Approval shall be evidenced by our doing at least one of the following:
(a) issuing written confirmation of a Sales Order;
(b) countersigning and dating an Order Form;
(c) executing a digital version of the Order Form; and/or
(d) commencing the supply of the Service in question, and “Approval” and “Approve” shall have the corresponding meaning;
“Artificial Inflation of Traffic” means a situation where the flow of Calls to any particular revenue share service is as a result of any activity by or on behalf of the party operating that revenue share service disproportionate to the flow of Calls which would be expected from good faith commercial practice and usage of the network;
“Business Day” means any day other than a Saturday or a Sunday or a public holiday in England;
“Call” means a signal, message or communication which can be silent, visual or spoken, excluding text messages;
“Change Control Procedure” means the procedure set out in clause 23;
“Change Request” has the meaning set out in clause 23;
“Change Order” has the meaning set out in clause 23;
“Charges” means any charges or fees payable by you to us in respect of the Services or any part of them and any VAT or other tax payable thereon, which shall include the Periodic Fee, Variable Charges, Set Up Charges, Termination Fees or other charges or one off charges as set out in this Agreement and/or set out in the Sales Order and/or Order Form and varied from time to time in accordance with clause
4.8 of the General Terms;
“Commencement Date” means the date specified as such on the relevant Order Form or, if no date is specified or no Order Form is completed, the first date on which we commence the provision of the Services to you, or otherwise in accordance with clause 1.2 of the General Terms;
“Confidential Information” means the terms of this Agreement, the business, accounts, finance, customers, clients, suppliers, contractual arrangements, operations, plans, products and product information, know-how, designs, trade secrets or any other dealings, transactions or affairs of the Parties, data, materials, technology, computer programs, software, specifications, manuals, business plans, marketing plans or any Intellectual Property Rights as developed by us or you from time to time whether or not marked as such;
“Connectivity Service” means broadband, Ethernet and/or data services identified on an Order Form as being a Connectivity Service or otherwise as we supply to you from time to time;
“Credit Limit” means the maximum permitted amount, determined by us, of credit applied to you in respect of billed or unbilled Charges (excluding VAT) as may be notified by us to you in writing from time to time in accordance with clause 6.1 of the General Terms;
“Customer Data” shall include, but not be limited to, traffic data in relation to your use of the Services (including the originating and destination numbers and internet protocol addresses, date, time and duration of voice or data transmissions, and other data necessary for the establishment, billing or maintenance of the transmission), data containing personal and/or private information of individuals that represent you, your employees or authorised users of the Services (including “Personal Data” as defined in Data Protection Laws), and other data provided to or obtained by us, a Group Company and our or their respective agents under the Agreement;
“Customer Equipment” means hardware, software, systems, cabling and facilities provided by you and used in conjunction with the Equipment that we supply to you in order to receive the Services;
“Data Protection Law” means Regulation (EU) 2016/679 (GDPR) and any associated regulations and any other data protection laws, regulations, regulatory requirements and codes of practice applicable to the matter in question, all of which as amended or replaced from time to time;
“Delayed Charges” shall have the meaning given in clause 4.5 of the General Terms;
“End User” means any person who is an ultimate recipient or user of the Services (such as your directors, officers and employees and anyone else who makes use of the Services that we supply to you);
“Equipment” means the physical hardware including the telecommunications or routing equipment provided by us in connection with the Services including the line rental Equipment, mobile Equipment and all other items of hardware provided to you in connection with the Services;
“Fluent”: means Fluent Communications Limited, Fluent Technologies Limited and Fluent Voice and Data Solutions Limited and any one of those companies whose registered offices are at Harley House, Farningham Road, Crowborough, East Sussex, TN6 2JD.
“Force Majeure” means any act of God, insurrection or civil disorder, war or military operations, failure, interruption rationing or shortage of energy supplies, imposition of sanctions or embargo, inclement weather, flood, drought, explosion, lightning, volcanic eruptions or fire or exceptionally severe weather, pandemic, epidemic, nuclear, chemical or biological contamination, sonic boom or solar flare, lock-outs (whether or not by that party), national or local emergency, acts or omissions of government or other competent regulatory authority, telecommunications network operators, industrial disputes (in each case, whether or not relating to that party’s workforce), highway authority or other government or regulatory authority, compliance with any statutory obligation, industrial disputes of any kind, the acts or omissions of network operators, inability or delay in obtaining supplies of a Service or equipment due to the act of a third party, delay or failure of that party’s supplier(s), act of animals or any other cause beyond that party’s reasonable control;
“Fraud” means any fraudulent or other unauthorised use (whether actual or attempted) of any telecommunication or IT services (including the Services), a Network, SIM Cards or Equipment, or the use or attempted use of any telecommunication or IT services (including the Services), any electronic communications network, SIM Cards or Equipment by corrupt, dishonest or illegal means, at any time and by any person, and includes any Artificial Inflation of Traffic;
“General Terms” means our general terms governing the supply of the Services as varied from time to time in accordance with clause 1.3 thereof, and which forms Part A of these terms and conditions, and which apply in respect of all sales or other provision of Services or Equipment by us to our customers;
“Group” in relation to any company (C), means C, any subsidiary or holding company from time to time of C and any subsidiary from time to time of a holding company of C (where the terms “holding company” and “subsidiary” shall have the meanings given in section 1162 of the Companies Act 2006), and “Group Company” shall have a corresponding meaning;
“Insolvent” means when a person is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
“Intellectual Property Rights” means patents, registered designs, trademarks and service marks (whether registered or not), internet domain names, copyright (including all customer terms and conditions and other similar documentation and any software code including any source or object code), design rights, database rights and all similar property rights (whether or not registered) and all rights or forms of similar protection or having equivalent or similar effect including those subsisting (in any part of the world) in inventions, ideas, improvements, designs, drawings, performances, computer programs, software, semiconductor topographies, plant varieties, confidential information, business names, goodwill and the style of presentation of goods or services including any improvements or refinements to any of the foregoing and in application for protection of any of the above rights and all other intellectual property rights and similar and equivalent rights in the world which currently exist or are recognised in the future;
“Liability” means all awards, compensation, costs, expenses, losses, (including any direct, indirect or consequential losses, loss of profit, loss of reputation), liabilities, damages, claims, proceedings, awards, fines, orders, demands, actions, payments by way of settlement, penalties, tribunal awards and other liabilities (including all interest, legal and other professional fees and expenses on an indemnity basis) whenever or howsoever arising or brought;
“Minimum Period” means a period of 60 consecutive months from the Commencement Date or such other period as is agreed and stated in a Sales Order and/or Order Form;
“Network” shall mean the Land Line Network, the Mobile Telecommunications Network and/or the IP Network;
“Network Operator” means the operator of the Networks and from whom access to the relevant Network is procured by us for your benefit or, in the case of the Fluent Network, means us;
“Order Form” means a document setting out the Sales Order for the supply of the relevant Services to you, which shall be in such form as we use from time to time and/or as we may in our sole discretion Approve;
“Periodic Fee” means the fixed fee payable by you to us in consideration of our supply of the Services, to be paid on a periodic basis as specified in the relevant Order Form or otherwise confirmed in writing by us;
“Sales Order” means a request by you to receive the Services or a change or variation in respect of the same (but not a disconnection) which is submitted either (i) using the Order Form as made available to you by us, and/or (ii) such a request made orally and which is converted into an Order Form by us, which in either case shall constitute an offer by you for the provision of the Services subject to the terms of this Agreement;
“Service Provider” means a supplier to us of goods and/or services that form any part of the Services (whether or not those goods and/or services are supplied to you in exactly the same form as they are supplied to us or are integrated into a separate product that we have constituted (such as Fluent IP Telephony));
“Service Specific Terms” means terms and conditions (other than the General Terms) which are identified as being specific to a particular part of the Services or any specific item of Equipment from time to time;
“Services” means the service(s) that we supply to you from time to time (whether or not set out in a Sales Order and/or Order Form (as applicable)), in each case including any Equipment which we supply as part of or ancillary to such Services;
“Set Up Charge” means any charge applicable for the set up or establishment of any particular part of the Services, as stated on the Order Form or, where the relevant Order Form does not identify such charge, the applicable charge notified to you in writing from time to time;
“Site” means the site at which the Services are supplied to you as identified on any relevant Sales Order;
“Small Business Customer” means a business customer who receives broadband or voice and data services and is neither:
(a) a communications provider; nor
(b) an undertaking (whether a company, partnership or any other business whether incorporated or unincorporated) for which more than 10 individuals work (whether as employees or volunteers or otherwise);
“Software” means any software (excluding end-user licensed software) supplied to you by us, the Service Provider, the Network Operator or any other supplier under the terms of or in respect of this Agreement, which shall be on the terms of a non-exclusive, non- transferable licence and which software is to be used for the sole purpose of operating the Equipment in order to be able to obtain the Services;
“Subsequent Period” means a period of 12 consecutive months commencing at the expiry of the Minimum Period and renewing at the expiry of each such 12 consecutive month period;
“Termination Fee” means the fee which we may charge to you in the circumstances described in clause 16.4 of the General Terms, which we will calculate and notify to you at the relevant time and which will not exceed the sum of:
(a) the aggregate Periodic Fees payable for the unexpired portion of the then-current Minimum Period or Subsequent Period (as applicable);
(b) any subsidised installation charges, discount(s) or other contribution by us towards your historic, upfront or ongoing costs set out in any Sales Order (for example, historic leases entered into by you that we agree to settle or refinance as part of your transfer of services to us); and
(c) such other costs or expenses that we remain liable to pay to a Service Provider, Network Operator or any other third party in connection with the provision of the Services to you for the unexpired portion of the then-current Minimum Period or Subsequent Period (as applicable) notwithstanding your early termination, but only to the extent that such other costs or expenses are not already incorporated within parts (a) or (b) above;
“Variable Charges” means any charge that varies in respect of each billing period, and which is determined by reference to the nature and/or extent of your use of a particular part of the Services, including call charges;
“VAT” means value added tax or its equivalent.
“we”, “us” and “our” refers to any of the Fluent companies;
“Website” means our website where all of the terms and conditions applicable to the supply of Services can be viewed at https://fluent-group.co.uk/terms-and-conditions. We reserve the right to change our website address and/or the location of legal information from time to time; and
“writing” includes email and notification through our Website
“you” and “your” refers to you, the business to which we supply the Services subject to the terms of this Agreement, whose details are stated in the Sales Order and/or Order Form or is otherwise the recipient of the supply of all or part of the Services from us.
2. Rules of Interpretation
2.1. In this Agreement, unless the context otherwise prescribes:
2.1.1. all headings are for convenience only and shall not affect its interpretation;
2.1.2. references to a clause shall, unless expressly stated otherwise, be to a clause within the General Terms in Part A of these terms and conditions, and references to a paragraph shall, unless expressly stated otherwise, be to a paragraph within the relevant Service Specific Terms in Parts B to E of these terms and conditions;
2.1.3. all references to this Agreement shall include any permitted variation, amendment or supplement to it from time to time;
2.1.4. any reference to any statute shall include references to the same as it may have been, or may from time to time be amended, consolidated or re-enacted and to any regulation or subordinate legislation made under it (or under any such amendment, modification, consolidation or re-enactment;
2.1.5. references to the plural shall include the singular and vice versa and reference to one gender includes reference to all genders;
2.1.6. any reference to a person shall be to a legal person of whatever kind whether incorporated or unincorporated; and
2.1.7. any words following the terms “including”, “include”, “in particular”, “for example”, “such as” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding or following those terms.
2.2. In the event of any conflict between the any provision(s) of the following, the order of precedence shall be (in descending order, the first being the highest precedence):
2.2.1. any Sales Order and/or Order Form; then
2.2.2. any applicable Service Specific Terms; then
2.2.3. any applicable Support Services Agreement; then
2.2.4. the General Terms.