FLUENT VOICE AND DATA SERVICES LIMITED
SERVICE SPECIFIC TERMS
The Agreement between you and Fluent Voice and Data Services Limited (“we/us”) for the engagement of our services is governed by the General Terms and these Service Specific Terms as set out below:
1. How the Service is supplied
We will provide the Services including VOIP and SIP services through a package of 3rd party providers and networks collectively known as the “Fluent Networks”.
2. Transfers of Services to us
2.1. Where we agree to the transfer of a Service to us, you agree to pay for any additional services that continue to exist on the relevant Lines and services at the time of transfer to us that you have not made us aware of at the time of ordering, regardless of when such services are billed to us by our supplier.
3. Revenue share services
3.1. Where we agree a revenue sharing arrangement with you in the context of an inbound telephony solution (a “revenue share service”), we may withhold any sums payable to you and any rebate due to you if:
3.1.1. in our reasonable opinion, Fraud has taken or is taking place;
3.1.2. the corresponding repayment or rebate to us from the Service Provider or any other originating operator or other relevant person has been withheld for any reason;
3.1.3. the Service Provider, BT or any other relevant person seeks or threatens to withhold from us payment of revenue or any other sums deriving from or attributable to the same revenue share service; and/or
3.1.4. the rebate is a de minimis sum of less than £5 (in which case we may keep it).
3.2. In the event that a claim is made against us by a Service Provider or any other originating operator or any other relevant person, under an interconnection agreement or otherwise for recovery of
sums previously paid, and in respect of which revenue share or a rebate has already been paid to you, you agree to repay such sums to us that derive from the amounts that are recovered from us.
3.3. You agree to indemnify us in respect of any Liability howsoever suffered or incurred by us in connection with any Call made using a revenue share service save for any Liability arising as a direct result of our fraud or wilful misconduct.
4. Lines and telephone numbers
4.1. We will use all reasonable endeavours to provide you with number portability provided that:
4.1.1. there are no technical reasons preventing us from doing so; and
4.1.2. you pay any associated charges arising in relation to such transfer.
4.2. Where, having used reasonable endeavours, we are unable to secure a number transfer from your previous supplier, we will provide you with a new number provided that you pay any associated Charges.
5. IP Telephony
5.1. Where IP Telephony is supplied to you, we may provide you with access to an online portal to support your use of it. If we do so, you are responsible for providing suitable computer hardware, software and telecommunications equipment and services necessary to access and use the portal. We may withdraw access to the portal at any time at our discretion for scheduled maintenance (in which case we will provide you with advance notice where practicable) or for other operational reasons.
5.2. There may be individual technical or geographical limitations that inhibit or prevent the installation, provision and/or performance of IP Telephony. In particular, the availability of IP Telephony and your ability to make and receive calls (including 999 or other emergency calls) is dependent on the adequacy and resilience of the Network and/or the availability of sufficient network coverage and/or internet connectivity at any particular geographic location. IP Telephony may cease to function if there is a power cut, failure within the Network and/or there is otherwise no or insufficient network coverage or loss of connectivity to the internet for any reason. These failures or outages may be caused by reasons outside our control and, subject to clause 13.3 of the General Terms, we shall not be liable to you for them.
5.3. Network numbers are registered to a particular Site address. That Site address remains fixed and does not vary depending on the device on which an End User is making a call or the physical location of that End User. If a 999 or other emergency call is made, the location information received by the emergency services will be the Site address. If a network number is reallocated to a different Site, it will take several days to update the location information with the new registered Site address details. You acknowledge and agree that, until the location information received by the emergency
services is updated, the location information received by the emergency services will be the registered Site address before the network telephone number was reallocated.
5.4. You undertake to us that, in any circumstances where you use IP Telephony to send or receive credit card details or other payment information, you will comply, and you will procure that all End Users comply, at all times during your use of IP Telephony, with the Payment Card Industry Data Security Standards (or any replacement or equivalent standards published from time to time).
5.5. You warrant and represent that you have and undertake to ensure at all times that you will maintain, all necessary permissions to present to third parties the telephone number that is presented externally by you when making calls using Fluent IP Telephony.
6. Call recording
6.1. Where your use of the Fixed Voice Services enables you to record calls, including through the use of the Fluent Network and/or IP Telephony, you warrant and represent to us that:
6.1.1. you have made yourself aware (and will procure that each End User is aware) of all legal rules and regulations governing the recording of Calls, including the circumstances in which and purposes for which such recording may be made, the length of time of retention of such information, the need to notify and manner of notification given to those taking part in such Calls; and
6.1.2. you will comply at all times with all relevant legislation relevant to the recording of Calls, including the Regulation of Investigatory Powers Act 2000, Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, Data Protection Act 1998, The Employment Practices, Data Protection Code, Telecommunications (Data Protection and Privacy) Regulations 1999, and the Human Rights Act 1998.
6.2. You agree to indemnify us and hold us harmless against all and any costs, claims, damages, expenses, or other liabilities that we incur as a result of your breach of this Agreement.
MOBILE TELEPHONY SERVICE SPECIFIC TERMS
1. Use of SIM Cards
1.1. Where we supply you with the Mobile Telephony Service and you are not already our customer, we will supply you with such number of SIM Cards as is necessary for you to receive the Mobile Telephony Service pursuant to the relevant Sales Order. Title to the SIM Cards shall remain with us.
1.2. Any attempt to use a SIM Card in other equipment that is not Equipment for the purposes of the Services or otherwise approved by us may result in serious damage to the equipment and may prevent you from being able to use it, including the making of emergency Calls. In these instances, neither we nor any Service Provider or Network Operator shall be responsible for any such damage
or usage problems. In addition, you agree not to establish, install, or use a SIM Card or any Equipment as, or in connection with, a GSM Gateway without our prior written consent (including devices tethered via cable, Bluetooth, or Wi-Fi, to a computer or the internet, when used for making large volumes of calls, using large volumes of data or sending large volumes of texts). We can withhold our consent for this activity at our sole and absolute discretion.
1.3. We will provide to you such mobile numbers as are necessary for you to receive the Mobile Telephony Service, or (where feasible) use reasonable endeavours to facilitate the porting of mobile numbers from another Mobile Telecommunications Network in accordance with standard porting procedures between Mobile Telecommunications Networks in the United Kingdom. Nothing in this Agreement shall be construed as granting to you any right in relation to the mobile numbers other than to receive the Mobile Telephony Service as described in this Agreement.
2. Disconnection of SIM Cards
2.1. You may give us notice in writing that you wish us to disconnect a SIM Card at any time. Within 30 days from receipt of such notice, we will disconnect the relevant SIM Card from the Mobile Telephony Service.
2.2. In the event that you give us a disconnection notice resulting in disconnection of a SIM Card pursuant to paragraph 2.1 prior to the expiry of the Minimum Period or a Subsequent Period (as the case may be), you agree to pay to us any applicable Termination Fee.
3. Services and coverage
3.1. Where possible, we will use reasonable endeavours to facilitate your access to overseas Mobile Telecommunications Networks. You agree that we are not responsible for the performance of any Mobile Telecommunications Networks that are not controlled by us (including those within the United Kingdom). Overseas Mobile Telecommunications Networks may be limited in quality and coverage, and you acknowledge that access, service availability and security depend on various factors outside of our control.
3.2. You will be able to upload and send your own content using the Mobile Telephony Service. You grant to us, any Service Provider, and any Network Operator a royalty-free, perpetual, and worldwide licence to store, transmit or otherwise deal with any content so uploaded.
3.3. Where you opt into any international roaming services provided as part of the Mobile Telephony Service, you accept that you are agreeing to opt out of any automatic barring (including any European regulatory barring) and agree to pay for all roamed usage in addition to all other Charges and bundles for which you are liable.
4. Securing your PIN, passwords, and SIM Card
4.1. You will ensure that you keep all SIM Cards supplied to you safe and secure whilst in your possession and you must ensure that you are able to return them to us immediately on request. There will be
a charge for any replacement SIM Card supplied to you save only where the original SIM Card is assessed by us as being defective.
4.2. You agree to immediately change your PIN or password if you become aware that someone is accessing Services on your account without your permission.
5. Age restricted services
If any End User is under 18, they are not permitted to access Age Restricted Services (if any) and you will ensure that you have deactivated any access to Age Restricted Services if you let anyone under 18 use the Equipment. If an End User is 18 or over and accesses the Age Restricted Services, they must not show or send content from the Age Restricted Services to anyone under 18. You agree to procure that all End Users comply with this clause.
6. Responsible use of Services outside the UK
If you use Services from or in a country outside the UK, your use of the Services may be subject to laws and regulations that apply in that other country. You are solely responsible for compliance with all such foreign laws and regulations, and we shall have no liability whatsoever for your failure to comply with such foreign laws or regulations.
7. Porting to another provider
7.1. If we receive a request to port a mobile telephone number to another provider, we will use reasonable endeavours to facilitate the provision of a porting authorisation code (“PAC”) to you in accordance with current regulatory guidelines. We will charge you an administration fee per number to cover the cost of removing your number from the Mobile Telephony Service, at our current rate notified to you in writing from time to time.
7.2. If you port a number away from us then in addition to the administration fee referred to in paragraph 7.1, you will still be liable for any outstanding Charges due to us pursuant to this Agreement, including any Termination Fees.
CONNECTIVITY SERVICE SPECIFIC TERMS
1. Accessing the Connectivity Service
You are responsible for making all arrangements necessary for you to access the Connectivity Service, including (where applicable) your having (and being responsible for maintaining) a suitable Line supplied by us to access the Connectivity Service.
2. Your responsibilities
2.1. The configuration of any of your own equipment, network or other materials used in connection with the Connectivity Service is your responsibility. We and the relevant Service Provider and/or Network Operator shall have no liability in respect of such configuration or preparatory work to make the same ready for the supply of the Connectivity Service, nor for any liabilities suffered as a result of any alterations that you make to any Equipment that is pre- configured before it is supplied to you, nor for any interruption or loss of a Connectivity Service resulting from erroneous configuration of any Equipment or your own equipment, network or other materials.
2.2. We may allocate to you one or more passwords to enable you to use the Connectivity Service. You must keep any such passwords safe and confidential and notify us immediately if you have any reason to believe that a third party has become aware of them. We reserve the right to change the passwords without notice for any reason and shall not have any liability to you for any costs incurred as a result of such changes.
2.3. We and/or a Service Provider may inspect and monitor from time to time all usage being made of the Connectivity Service, including communications being sent and received and data being hosted and processed, in order to verify compliance with this Agreement.
2.4. You undertake that you will not (and will procure that End Users will not):
2.4.1. perform (or allow anyone else to perform) any unauthorised IP or port multicasting, spoofing, broadcasting, vectoring, filtering, translation, or routing; and
2.4.2. connect any Equipment to any connection point other than that approved by us (and you acknowledge that where any Equipment is connected other than as so approved, your connection may be cut off without prior notice).
3. Service Standards
3.1. We do not warrant or guarantee the performance of the Connectivity Service or that the transmission of information over the internet by use of the Connectivity Service will be completely secure or that the internet will be accessible at all times or at any particular download or upload speeds indicated to you.
3.2. We will use reasonable efforts to minimise any downtime during which the Connectivity Service is unavailable (for example, due to essential maintenance or fixing system faults), and wherever practicable to carry out routine maintenance or upgrading at such times as traffic is generally at its lowest. Emergency or urgent maintenance may be carried out at any time and from time to time. You acknowledge that periodic downtime is an inevitable part of receiving the Connectivity Service and agree that we will not be liable to you for any losses or liabilities resulting from such downtime.
3.3. The Connectivity Service is provided to you on an ‘as-is’ and ‘as-available’ basis and to the fullest extent permitted by applicable laws we exclude all and any warranties and conditions of any kind, whether express or implied, in respect of it.
4. Intellectual property
4.1. You will have no right, title or interest in any IP address allocated to you in connection with the Connectivity Service (whether during the term of this Agreement or after its termination or expiry). Any allocated IP address is not portable or otherwise transferable by you in any manner whatsoever.
4.2. If an IP address is renumbered or reallocated by us and/or a Service Provider, we will use reasonable endeavours to avoid any disruption to you but, subject to clause 13.3 of the General Terms, we will have no liability to you in connection with any losses suffered in connection with such renumbering or reallocation.
TELEPHONY SYSTEM AND SUPPORT SERVICE SPECIFIC TERMS
1. Risk and ownership of Equipment supplied as part of the Telephony System and Support Service
1.1. We may supply you with a telephony system and/or related hardware (the “Telephony System Service”) and/or support services in relation to your telephony system (whether supplied by us under the Telephony System Service or not) (the “Support Service”). We will discuss your requirements with you, but you acknowledge that it is ultimately your responsibility to determine whether the Equipment and/or Services supplied are suitable for your requirements.
1.2. Risk in all Equipment supplied pursuant to the Telephony System and/or Support Services shall pass to you on delivery.
1.3. Unless otherwise specified in an Order Form, the ownership in the Equipment shall not transfer to you. This means that you do not own the Equipment outright and it always remains our property or that of any third-party finance company to which we may have transferred ownership. You agree to deliver up the Equipment to us (or the relevant third-party finance company, as we may direct) upon termination or expiry of this Agreement. If you do not return the Equipment to us on request, we (or the relevant third-party finance company, as the case may be), and without prejudice to any other legal remedies that we or they may have, shall be entitled to enter the Site or any other premises under your control (without prior notice) and remove Equipment.
1.4. With effect from the date of delivery by us, you agree that if we request you to do so, you will insure any Equipment for its full replacement value with such insurance company as we may approve (such approval not to be unreasonably withheld) and you will provide to us a copy of the insurance certificate, which certificate shall confirm that we (or the relevant third party finance company, as we may direct)are noted on the policy as loss payee.
1.5. If an Order Form specifies that certain Equipment is sold to you, title to such Equipment will not pass to you until the date that all Charges (and any additional sums payable by you pursuant to this Agreement) have been paid to us in full and in cleared funds.
1.6. Save for any Equipment to which title has passed to you pursuant to paragraph 1.5, you are not entitled to sell, transfer, lease, charge, assign by way of security or otherwise deal with or encumber
any Equipment at any time, and to the extent that you breach the foregoing restriction in whole or part, any proceeds of sale or other consideration retained by you will be held on trust for us.
1.7. You acknowledge and agree that we may order certain goods and services from third parties on your behalf in connection with this Agreement. In the event of any failure by such third parties to supply such goods and services, you will be solely responsible for pursuing any available remedies directly against that third party.
1.8. We warrant that the Equipment will be in good working order at the time of delivery and will be free from defects in materials and workmanship for a period of three months from the date of delivery, save that we will not be liable for breach of this warranty where any defect arises from fair wear and tear, misuse, abuse, the use of unsuitable consumables or failure to follow written instructions relating to the Equipment, or any alteration or repair to the Equipment made without our approval.
2. Your responsibilities
2.1. You are responsible for the safe use of all Services and, without prejudice to the generality of the foregoing, in relation to the Telephony System and/or Support Service you undertake to (in each case insofar as is reasonably necessary to enable us to carry out our obligations under this Agreement):
2.1.1. make available to us without charge such computer and communications facilities, office facilities and services and suitable office space as requested and obtain all access rights that we require;
2.1.2. provide to us or to any relevant supplier as we may specify, and our and their employees, subcontractors or anyone acting on our or their behalf, unrestricted access (24 hours a day 7 days a week) either on site or remotely to any communications system, computer system, data, software and/or any other facilities as required by us to carry out our obligations under this Agreement, and you agree to procure and maintain all necessary licences or other access rights as necessary to permit such access;
2.1.3. ensure that any Intellectual Property Rights that we are required to use or modify in order to supply the Support Service are either proprietary to you or properly licensed to you and that we are properly authorised to use or modify those Intellectual Property Rights. You agree to indemnify us in respect of any costs, expenses, damages, third party actions or claims arising out of any actual or alleged infringement of a third party’s intellectual property rights;
2.1.4. ensure that adequate electrical power is supplied to all Equipment, that its external surfaces are kept clean and in good condition, that it is stored and maintained in accordance with all documentation supplied to you with it, and that it is not added to, modified, or adjusted without our prior written consent; and
2.1.5. ensure that only our personnel are permitted to maintain, service or carry out adjustments to the Equipment.
2.2. Where we give you consent to make any changes to Equipment (for example to make programming changes), you agree:
2.2.1. that we will not be liable for any faults in relation to the Equipment where such alteration has caused or contributed to such fault;
2.2.2. we may (acting reasonably) disregard any service levels applicable to any altered Equipment where such alteration has affected our ability to perform our obligations under this Agreement; and
2.2.3. you will indemnify us and hold us harmless from and against any liability suffered or incurred by us arising out of the alteration of such Equipment.
3. Faults
Unless you notify us in writing of a material fault with any Equipment within seven days following delivery, you will be deemed to have accepted it. You acknowledge and agree that seven days is a reasonable period for the purpose of inspecting the Equipment and testing it for material faults.
After this 7 day period, you will be charged for any replacement Equipment that is required
4. What is not included in the Support
4.1. Subject to anything to the contrary stated on an Order Form, the Support Service does not include any work, goods or services made necessary or which you request from us as a result of the following (for which we may charge an additional fee):
4.1.1. design defects in the Equipment or faulty manufacture, materials or workmanship;
4.1.2. any fault or defect occurring in any equipment not supplied and/or supported by us including network line faults and faults in BT’s or any other third party’s equipment or facilities;
4.1.3. accident, fault, act or omission of any person other than us;
4.1.4. use of Equipment in excess of any maximum usage specified by the manufacturer of the Equipment;
4.1.5. failure of electrical power (including power surges or power cuts), air conditioning, humidity or other environmental controls;
4.1.6. electrical infrastructure external to any Equipment;
4.1.7. damage by vandalism, fire, water or adverse weather conditions;
4.1.8. movement or relocation of the Equipment not performed by or on behalf of us;
4.1.9. furnishing of the Equipment with accessories or attachments, painting or finishing the Equipment or removing accessories or attachments;
4.1.10. breach of your obligations in this Agreement;
4.1.11. hardware, accessories, attachments, machines, systems or other devices not referred to in an Order Form;
4.1.12. rectification of lost or corrupted data arising from any reason other than our negligence;
4.1.13. support services rendered more difficult because of any changes, alterations, additions, modifications or variations to facilities at the Site;
4.1.14. your failure to maintain comprehensive and fully operational back-up of all Customer Data; and
4.1.15. diagnosis and/or rectification of problems not associated with Equipment supported by us under this Agreement.
4.2. Where we install software and/or applications to your LAN/WAN infrastructure, it will remain your responsibility to ensure that it is available and complete at the time of our installation, and you will ensure the network is maintained in order that all applications and software are able to run at their optimum level. Any faults found to be a result of the LAN/WAN, or any other network will be charged to you separately at a rate to be agreed before we carry out further work.
DEFINITIONS AND RULES OF INTERPRETATION
The following Definitions and Rules of Interpretation apply to all parts of these Service Specific Terms.
1. Definitions
“Connectivity Service Specific Terms” means the Service Specific Terms relating to the provision of the
Connectivity Service (as may be varied in accordance with clause 1.3 of the General Terms);
“Fixed Voice Service Specific Terms” means the Service Specific Terms relating to the provision of the Fixed
Voice Service (as may be varied in accordance with clause 1.3 of the General Terms);
“Fixed Voice Services” means the rental (and where applicable the installation and/or conversion) of analogue
and/or digital telecommunication exchange lines and/or the supply of PSTN (Public Switch Telephone Network) telephony services or using any internet protocol telephony services (including Fluent IP Telephony and/or any services supplied in conjunction with the Fluent Network or otherwise as specified on the relevant Order Form. In some cases, the Fixed Voice Service will involve ‘carrier pre- selection’, whereby calls are not routed directly over the Network, or least cost routing, in each case supplied by us pursuant to the Fixed Voice Service Specific Terms;
“General Conditions” means the General Conditions of Entitlement published by the Office of Communications
(OFCOM) in accordance with section 45 of the Communications Act 2003, as may be amended, modified or replaced from time to time;
“GSM Gateway” means any equipment containing a SIM Card which enables the routing of calls or sending of
text messages from fixed apparatus to mobile equipment by establishing a mobile-to-mobile call or data connection; “IP Network” shall mean the points of presence, network hubs, and host computers owned, operated or used by us or a Group Company in connection with the provision of the Fixed Voice Services or the Connectivity Service (or, where applicable, owned, operated or used by you);
“IP Telephony” means telephony services over internet protocol
“Land Line Network” means any fixed line telecommunications network;
“Line” means a connection to the Land Line Network;
“Line Rental Equipment” shall mean the hardware, software, systems, cabling, and facilities provided by us at the Site (or any third party premises agreed by the parties) in order to make the Services available to you. Line Rental Equipment shall not include the Land Line Network or any hardware or software which is the subject of a separate supply contract between you and us (or any of our Group Companies);
“Mobile Equipment” means any phones, SIM Cards and related items (including USB modems and phone
chargers packaged along with a phone) or other equipment provided by us to you under this Agreement for use in connection with the Mobile Telephony Service;
“Mobile Telecommunications Network” means a telecommunications network used for the provision of mobile
telecommunications services;
“Mobile Telephony Service” means the mobile telecommunications service supplied by us pursuant to the
Mobile Telephony Service Specific Terms (if any) and as described on the relevant Order Form;
“Mobile Telephony Service Specific Terms” means the Service Specific Terms relating to the provision of the
Mobile Telephony Service (as may be varied in accordance with clause 1.3 of the General Terms); “Network” shall mean the Land Line Network, the Mobile Telecommunications Network and/or the IP Network or ISPs;
“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;
“Network Termination Point” means the point where the relevant customer’s wiring or equipment is connected
to the Land Line Network;
“SIM Card” means the subscriber identity module supplied by the Network Operator (and which shall at all times
remain the property of the Network Operator), which is allocated to you by us;
“SIP” means session initiation protocol to connect VOIP to other networks.
“Support Service” means the telephone system Support services supplied by us pursuant to the Telephony
System and Support Service Specific Terms and as described on the relevant Order Form;
“Telephony System and Support Service Specific Terms” means the Service Specific Terms relating to the
provision of telephone systems, CCTV, Wifi solutions and Tannoy systems and hardware and/or the Support Service, (as may be varied in accordance with clause 1.3 of the General Terms);
“VOIP” means voice over internet protocol.