“Act of God” means an act outside of the reasonable control of the Parties to include but not limited to fire, flood, earthquake, wind storm or other natural  disaster, civil war, rebellion, military or civil unrest which renders performance of the agreement impossible;
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general banking business in London;
“Business Hours” 9.00am to 5.30pm local UK time on a Business Day;
“Call Faults” means interruption to the Services caused by a fault other than a Line Fault
“Charges” means the charges set out in the Price Guide for the Services or as notified by Vivid Telecom from time to time;
“Commencement Date” the date on which this Agreement shall become effective, being the date of signature of this Agreement or such other date   agreed in writing between the parties;
“Confidential Information” means all business and trade secrets, methods of doing business, customer list and other confidential information and material   disclosed by either party to the other in connection with this Agreement;
“Customer” means the person/business set out in the Order Form;
“Customer Equipment” means any equipment (including without limitation, cabling, wiring, personal computers, network interface cards and network
interface adapters) in order to obtain or use the Services;
“Fault” means Call Faults and Line Faults
“Insolvency Event” means bankruptcy or insolvency proceedings in the United Kingdom or elsewhere, a liquidator, trustee in bankruptcy, receiver or administrator (or equivalent) is appointed over any assets or the entering into of any formal or informal composition or arrangement (or equivalent) with
the creditors of the Customer or Vivid reasonably believes that such events are reasonably likely to occur
“Law” means any law, statute or regulation, guideline or code of conduct (whether or not having the force of law) in any jurisdiction to which a party is
from time to time subject;
“Line Fault” means interruption to the Services caused by a fault on the line other than a Call Fault
“Minimum Period” means a period agreed between Vivid Telecom and the Customer as set out on the Order Form;
“Order” means an order for services placed on an Order Form of Vivid;
“Order Form” means the order form completed by (or on behalf of) the Customer and accepted by Vivid to order the Services;
“Price Guide” means all and any information relating to Charges for and relating to the Services, available on request from Vivid;
“Prompt Care” means a fault repair service operating between 0900 hours and 1700 hours, Mondays to Friday, excluding bank holidays under which
Vivid will aim to respond to a fault report within six hours of its receipt and, if the fault is not cleared within the six hour period, advise the Customer of
the progress being made towards resolving it;
“Service Care” means any, all or each of the Prompt Care, Standard Care or Total Care as set out on the Order Form;
“Service Commencement Date” means the date upon which the Services are provided to the Customer;
“Services” means the provision of line rental at the cost set out on the Order Form and/or notified from time to time to the Customer;
“Standard Care” means the fault repair service operating between 0900 hours and 1700 hours, Mondays to Fridays, excluding bank or other public holidays, under which Vivid Telecom will aim to respond to a fault report received before 1700 hours on one working day by the end of the next working day;
“Vivid Telecom” is a trading name of Vivid Telecom Limited (registered in England and Wales under number 06717474;
“Vivid Network” means the telecommunications system operated and maintained by Vivid;
“Survey” means any survey or other investigations carried out by or on behalf of Vivid that Vivid in its absolute discretion deems necessary prior to the provision of the Services; and
“Total Care” means the fault repair service operating 24 hours 7 days per week including bank holidays under which Vivid will aim to respond within 4 hours of receipt of a fault report (excluding faults which do not immediately affect the use of equipment by the customer). If the fault is not cleared during this period, Vivid will advise the customer of progress being made to clear the fault

1.2.      In these Conditions;
1.2.1.   references to “him” “his “her” or other gender specific references shall be deemed to incorporate the other;
1.2.2.   headings are for reference only and shall not affect the interpretation of these terms and conditions;
1.2.3.   a “person” includes any “person”, partnership, firm, company, body corporate or corporation or organisation;

  1. Basis of Services Provision

2.1.      Vivid Telecom shall provide to the Customer the Services subject to these Conditions, which supersede any other terms and which govern the Contract to the exclusion of any items and conditions which the Customer purports to apply or which are implied by trade, custom or course of dealing.
2.2.      Apart from the Order Form no terms or conditions endorsed upon, delivered with or contained in the Customer’s order or other document will form part of the Contract simply as a result of such document being delivered to Vivid or referred to in the Contract.
2.3.      No variation to these Conditions is effective unless agreed in writing by a director of Vivid Telecom.
2.4.      These Conditions constitute the entire agreement between the Customer and Vivid for the supply of the provision of the Services
2.5.      Vivid’s employees or agents are not authorised to make any representation concerning the Services.
Any representation they do make must be confirmed by Vivid Telecom in writing, and the Customer acknowledges that it does not rely on, and waives
any claim for breach of, any such unconfirmed representation (unless such representation is made fraudulently).
2.6.      Any typographical, clerical or other error or omission in any document or information issued by Vivid shall be subject to correction without any liability on the part of Vivid.
2.7.      The Customer acknowledges that if these Services are being purchased as part of a business to business transaction and that the Consumer Protection (Distance Selling) Regulations 2000 do not apply.

3.            Broadband Schedule of Service

Rental of ADSL/FTTC on existing BT analogue line from customer’s site (BT analogue line rental still payable)
3.1          IP connectivity between customer’s site and Vivid Telecom’s Internet Network service.
3.2          IP addresses may be requested at Vivid Telecom’s discretion and subject to completing an appropriate IP Address request form.
3.3          The customers are expected to manage their own hardware. Vivid Telecom will not provide any support for hardware or configurations. It is the customer’s responsibility to ensure the hardware is compatible with the service provided.
3.4           Capped services – these services are provided with a specified transfer data cap. Vivid Telecom reserves the right to decide whether to
enforce the cap or allow continued usage. If the cap is exceeded additional Gbs will; be charged monthly in arrears as per the stated increments and charges.

3.1.1      Broadband Service Standards
         On wires only, Vivid Telecom only provides support for the service being provided on a working BT analogue line. It is at Vivid Telecom’s discretion whether they would offer to provide a router for your service for free or at a cost.
3.1.2      In order to use ADSL Services, you need an existing BT telephone line and a personal computer of a minimum specification. You acknowledge that we are dependent upon certain third parties to install and provide ADSL Services to you. You also acknowledge that there may be technical limits that prevent us from delivering an operational service to you. We will endeavour to provide ADSL Services to you at the access rate you choose but, due to contention within the network, the speed of service may be reduced at times.
Vivid Telecom is only responsible for the hardware and service up to the Ethernet interfaces, all equipment and services beyond this are the customer responsibility,
3.1.3     We do not undertake to provide a fault free service. If, however, a fault occurs, you should report the fault by telephone, electronic mail to support@vividtelecom.com or in writing to Vivid Telecom, Support Department, Unit 2277 Chynoweth House, Trevissome Park, Truro, Cornwall, TR4 8UN. We will let you know as soon as reasonably practicable of any periods of downtime of the Support Service.

4.            Quotations, Orders and Specifications

4.1.         A quotation by Vivid Telecom is not an offer. Quotations are valid for 30 days only and subject to withdrawal or revision at any time before acceptance of the Customer’s order by Vivid Telecom.
4.2        No Order Form submitted by the Customer by whatever means is accepted by Vivid Telecom until Vivid confirms its written acceptance or (if earlier) provides the Services to the Customer.
4.3.       The Customer must ensure that the terms of any order included on an Order Form (including any specification) are complete and accurate and that Vivid Telecom is provided with any necessary information relating to the provision of Services.
4.4.        Notwithstanding clause 3.2 it at its discretion Vivid accepts an order for Services placed other than on its standard order form
(a “Customer Order Form”) or if Vivid installs a service without having received from the Customer and/or accepted either Vivid’s standard
Order Form or a Customer Order Form, the services shall be provided in accordance with the terms of the contract.
4.5.        Vivid reserves the right to make any changes in the specification of the services which are required to conform with any applicable law
or services are to be supplied to the Customer’s specification, which do not materially affect their quality of performance.
4.6.        Subject to satisfactory survey, Vivid shall use its reasonable endeavours to connect any Customer Equipment so that the Services are available by any requested service date. An order may be cancelled by Vivid without liability if the results of any Survey are, in Vivid’s reasonable opinion, unsatisfactory or if it is not technically feasible to implement and/or support the services by the requested service date.
4.7.        The Customer acknowledges that provision by Vivid of specified telephone numbers is not guaranteed until connection to Vivid Network is complete and the provision of Services has commenced.

5        Customer Equipment

5.1.       Vivid shall have no liability for any loss or damage arising directory or indirectly from use of the customer equipment whether or not Vivid shall have recommended the use and/or performance of such customer equipment.
5.2.       Unless otherwise agreed in writing, the Customer is responsible for ensuring that the Customer Equipment is programmed, equipped compatible and connected for use of the Service in accordance with Vivid’s reasonable instruction and any other instruction or safety and security procedures applicable to the use of Customer Equipment.
5.3.       The Customer must ensure that all Customer Equipment is in good working order and complies with applicable standards, approval and any relevant Law. Vivid may require the Customer to disconnect (in which case the Customer must do so promptly) or may itself disconnect any Customer Equipment if in Vivid’s reasonable opinion.
5.3.1.      it does not conform to applicable standards, approval or any relevant law for the time being in force; or
5.3.2.      it may cause injury to any person or material damage to property; or
5.3.3.      it may materially impair the quality of any services provided by Vivid.
5.4.        Vivid has no liability whatsoever where any inability to use the services is due to incompatibility with the Customer Equipment

5.5.       In the event that the Customer Equipment has least cost routing software, Vivid may reprogram such Customer Equipment in order to facilitate connection to Vivid Network.
5.6.       In the event that the Customer Equipment does not have least cost routing software, Vivid may supply such Company Equipment as is
necessary in order to facilitate connection to Vivid Network.

6.         Cancellation and Delay
6.1.       No Order may be cancelled by the Customer except with Vivid’s written agreement and on terms that the Customer shall indemnify
Vivid against all loss (including loss of profit), costs, (including the cost of all labour and materials used), damages, charges and expenses incurred by Vivid as a result of cancellation.
6.2.       If the customer extends or delays the Contract at the agreed time or (if no time is agreed) within a reasonable time then the Customer shall indemnify Vivid against all loss (including loss of profit), costs (including all labour and materials used), damages, charges and expenses incurred by
Vivid as a result of such extension, delay of failure.
6.3.       Vivid reserves the right to defer the date of delivery or performance or to cancel the Contract without liability to the Customer in the event of
an Act of God.  In such circumstances, the Customer may also give written notice to cancel the Contract if the cause in question continues for a continuous period in excess of 180 days but in any event shall remain liable to pay for Services delivered or supplied prior to such cancellation by
Vivid or the Customer.

  1. Charges

7.1.       The Charges for the provision of Services are Vivid’s quoted Charges or, where no Charges have been quoted (or a quoted Charge is no longer valid), the Charges listed in Vivid’s Price Guide at the date of provision of Services.
7.2.       Vivid reserves the right at any time before delivery or performance to amend the Charges for the Services to take into account any variation in cost to Vivid.
7.3.       Vivid Telecom shall provide the Customer with the Service for the fees as set out on the Application Form. These fees are payable in advance from the start of the Minimum Period of Service.
7.4.       Charges for the Services are as referred to in the Price Guide or as otherwise agreed in writing (including the Order Form).  Notwithstanding the aforesaid, Charges are subject to confirmation by Vivid.  If following any Survey (or other investigation) Vivid concludes that it will incur unusual
additional costs in provided the Services, Vivid shall be entitled, on notification to the Customer, to increase the Charges by the amount of such costs.  Where the Customer does not accept such increased Charges, the Contract will come to an end.
7.5.       Other than as set out in clause 6.4 Vivid may increase or implement new Charges by giving the Customer 30 days’ written notice.  Without limitation such notice may be contained in billing information provided to the Customer by Vivid.  Within 7 days of such notification the Customer
may give notice to Vivid to terminate the Agreement.  If the Customer does not terminate in such period, the Customer is deemed to have accepted the increase/new Charges.  Vivid may decrease charges at any time without notice and the Customer shall have no right to terminate the Agreement.
7.6.       The Customer acknowledges that the Charges for the Services are comprised of a number of components, including (but not limited to),
standard per minute costs, minimum call charges, connection costs, call configuration costs and minimum call times, as detailed in the Price Guide.
The Customer further acknowledges that the Charges levied for the Services are subject to change and any increase or decrease in such component Charges payable or recovered by Vivid as a result of changes implemented by Vivid or third party suppliers shall be applied to the account of the Customer following notification of such changes by Vivid.
7.7.        The term of this agreement is initially 12 Months with a 30-day written notice to cancel. Termination of this agreement within the minimum term will incur a cancellation fee of 100% of any remaining charges for the rest of the minimum term.
7.8.       If you choose to move your broadband to another provider you must notify us immediately to avoid your order being cancelled, due to no authorisation. Requesting this is absolutely free however if you cease your service a fee would be charged of £50.00, which will be passed on to you which we will pay BT.
8.       If you fail to pay for any services to Vivid Telecom within 10 days being issued, then a claim will be made against you which may terminate your broadband or telecoms line package.
8.1.       Deposits may be taken up front if Vivid Telecom believe that the customer or business may have bad credit or if Vivid believe that the payment would be taken to secure their order which will be returned 6 Months later unless late payments occur. If late payments occur payment will be used to cover the administration fees.

9.         Payment of the Charges

9.1.       Payment of the Services (unless otherwise agreed in writing by a director of Vivid) shall be paid by Direct Debit or such other means of electronic
funds transfer as Vivid shall decide and shall be due 10 days after the date of Vivid’s invoice.

9.2.       The Customer authorises Vivid to alter the Customer’s direct debit instructions according to the relevant Charges from time to time
applicable to the Services.  On proper termination of the Contract the Customer shall be responsible for the cancellation of any other authorisations for period payment to Vivid.  Except on proper termination of the Contract the Customer acknowledges that it must inform Vivid immediately
if it proposes to cancel any direct debit instructions.  Cancellation of any direct debit instruction shall entitle Vivid to suspend and/or terminate
the Contract without notice. Payment of Direct Debit will be collected by our processing team called GOCARDLESS or VIVID TELECOM LTD.
9.3.       Time of payments is of the essence.
9.4.       For the purposes of this Contract, payment is received when Vivid receives it in cleared funds.
9.5.       Payment by the Customer or on its behalf shall be made without any deduction or set off.
9.6.       Vivid reserves the right to claim interest and compensation for debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002.
9.7.       Despite any provision allowing credit, payment is due and payable to Vivid immediately upon cancellation or termination of the Contract.
9.8.       Vivid shall be entitled to payment for all instalments of Purchased Equipment delivered to the Customer, whether under a blanket order or otherwise.
9.9.       If the Customer fails to make any payment on the due date then Charges for Services provided or agreed to be provided to the Customer
shall be immediately due and payable without demand and Vivid may:
9.9.1.       cancel the Contract or suspend deliveries or performance to the Customer in accordance with clause 8; and/or
9.9.2.   appropriate any payment made by the Customer to such of the Services (or the goods or services supplied under any other contract between the Customer and Vivid) as Vivid thinks fit.
9.9.3.       If payments are not paid within 10 days of invoice you will be liable to a £12 late payment fee which will be added on your next   bill.

9.10.    Vivid is entitled to set off sums owed by Vivid to the Customer against sums owed by the Customer to Vivid.

10.           Service Credits


10.1.        Do not apply to Vivid Telecom’s Standard Care ADSL services.  Under Enhanced Care – if the qualifying fault isn’t repaired within 24 hours,
you may claim a service level credit within 30 days of the end of the month in which you reported the fault.

  1. Outages


11.1.        Planned Outages may occasionally be necessary for Vivid Telecom to carry out essential maintenance or network upgrades. They will be kept to a minimum and scheduled to minimise disruption.

11.2.        Vivid Telecom will provide a fault reporting helpdesk facility. The helpdesk will respond promptly to faults reported. Faults remedied will be advised by email.
11.3.        Vivid Telecom aim to rectify faults within 48 hours of raising a fault. Time to fix may be affected by circumstances. This is a target repair time and does not constitute a service level; under no circumstance is Vivid Telecom liable for outages or consequential losses.
11.4.        Faults not involving Vivid Telecom’s Network services or equipment.   Vivid Telecom will advise of steps taken to diagnose a fault for which
Vivid Telecom is not responsible.
11.5.        Neither party shall be liable to the other, either in contract, tort (including negligence) or otherwise for direct or indirect loss of profits,
business or anticipated savings, nor for any indirect or consequential loss or damage or for any destruction of data.

  1. Services Provision and Use of the Services

12.1.        Vivid shall provide the Services in accordance with the Contract.
12.2.    The Customer must promptly supply Vivid with all information and materials reasonably required by Vivid to supply the Services.
12.3.    Vivid shall use the reasonable skill and care of a competent telecommunications service provider in providing the Services.  However, the Customer accepts that it is technically impracticable to provide the Services entirely free of faults and Vivid does not undertake to do so.
12.4.    The Customer undertakes to use the Services in accordance with such conditions and/or instructions as may be notified in writing to the Customer by Vivid from time to time and in accordance with Law and the Contract.  Vivid may from time to time vary the technical and/or operational procedures for use of the Services
12.5.    The Customer must not use or allow anyone to use the Services:
12.5.1. to send or receive a communication which is offensive, abusive, indecent, obscene or menacing;
12.5.2. to cause annoyance, inconvenience or needless anxiety to anyone;
12.5.3. to violate or infringe the rights of any person;
12.5.4. in breach of the Contract; or in breach of Law.
12.6.    The Customer shall not sell or transfer any telephone number provided to the Customer for use with the Services.
12.7.    Vivid may at its discretion suspend the Services and/or terminate the Contract if the Customer is in breach of the Contract.
12.8.    Where, in accordance with the Contract Vivid suspends performance of or access to the Services pending compliance by the Customer
with the Contract, such suspension may result in one or more of the following actions:
12.8.1. call-barring may be implemented, restricting calls to and/or from the Customer’s system;
12.8.2. lines and Services may be designated “temporarily out of service”; and
12.8.3. disconnection of the Services and the Customer’s ability to access Vivid Network.
12.9.    Following a suspension of Services and a rectification by the customer in accordance with the Contract, Vivid shall use its reasonable endeavours to resume access to the Services for the Customer within a reasonable time.  The Customer acknowledges that the period of time to enable Services to be resumed is dependent upon the manner of suspension employed by Vivid and, as a minimum; periods for resumption of Services
would be as follows:
12.9.1. call-barring – 8 hours;
12.9.2. lines temporarily out of service – 48 hours; and
12.9.3. disconnected lines – 14 days.
12.10.  The Customer acknowledges that following a suspension of Services resulting in disconnection under clause 8.7
12.11.  the telephone numbers previously made available to the Customer by Vivid may no longer be available and a reconnection charge for
each line affected may (at the discretion of Vivid) be levied by Vivid in accordance with the Price Guide.
12.12.  Vivid shall provide (or procure the provision of) such level of Service Care in relation to the Services as the Customer has requested on the Order Form.
12.13.  If a Fault in the Service is reported by the Customer, in accordance with the applicable Service Care, and:
12.13.1.           Vivid make arrangements to visit the Site and are unable to obtain the necessary access to the Site; or
12.13.2.           Vivid undertake work to correct the fault but find no fault present, or find that a fault is a Call Fault and/or has been caused by the act or omission of the Customer; or
12.13.3.           Vivid agrees to attend a Site outside the normal working hours appropriate to the applicable level of Service Care.
Vivid may charge the Customer in respect of such actions in accordance with the Price Guide and in any event if the Fault is caused by the Customer Equipment a minimum of £100 (exclusive of VAT and applicable taxes) will apply and further charges will be levied in accordance with the Price Guide charge.

  1. Limitation of Liability

13.1.    The following sets out the entire financial liability of Vivid (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Customer in respect of any breach of these Conditions, any representation, statement or act or omission (including negligence) arising under or in connection with the Contract and in respect of any contemplated performance or lack of performance.
13.2.    All warranties, conditions or other terms implied by statute, common law, and trade usage or otherwise are excluded to the fullest extent permitted by law.
13.3.    Where the Services are provided under a consumer transaction the statutory rights of the Customer are not affected by these Conditions.
13.4.    Nothing in these Conditions excludes or limits Vivid’s liability for death or personal injury caused by Vivid’s negligence or for fraudulent misrepresentation.
13.5.    Subject to clauses 9.2 and 9.4:
13.5.1. Vivid shall not be liable to the Customer for any loss of profit, loss of production, financial loss, depletion of goodwill or any indirect loss, damage, costs or expenses whatsoever which arise out of or in connection with the Contract, its contemplated performance or local of performance or
any suspension of Services in accordance with clause 8; and

13.5.2. subject to clause 9.5.1, Vivid’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance or lack of performance of this Contract shall be limited to the Charges incurred by the Customer in any 12 months’ period.

 

 

  1. Indemnity

14.1.    The Customer agrees to indemnify Vivid against any damages, losses, costs, claims or expenses incurred by Vivid towards a third party arising out of or in connection with the use of Services provided by Vivid or their operation or use and whether arising by reason of the negligence of Vivid other otherwise.
14.2.    The Customer agrees to indemnify and hold harmless Vivid against all liabilities, claims, damages, losses and proceedings arising out of or in any way connected with any use of the Services in contravention of the Contract, or the Law.

15.       Duration and Termination

15.1.    In relation to the Services, the Contract shall come into effect on the earliest of the dates the Customer signs the Order Form or the Service Commencement Date.
15.2.    The Contract shall continue in force unless either party terminates the Contract by giving the other party 30 days’ written notice.  Line & Broadband services are subject to a 12 month minimum period.
15.3.    Notwithstanding clause 11.2, the Customer may terminate the Contract in accordance with clause 6.5.
15.4.    Notwithstanding clause 11.2, Vivid may terminate the Contract immediately on written notice if:
15.4.1. any Survey is not, in Vivid’s discretion, satisfactorily completed;
15.4.2. the Customer is the subject of Insolvency Event.  For the purposes of this clause 11.4.2 the Customer shall include the Customer’s
direct and/or indirect parent Vivid and “Customer” shall be interpreted accordingly;
15.4.3. the Customer makes a material miss-statement in the details the Customer has supplied to Vivid to enable Vivid to provide the Services;
15.4.4. the Customer materially breaches (including without limitation failure to pay any Charges promptly) the Contract or any other agreement the Customer may have with Vivid or a member of Vivid’s group;
15.4.5. Vivid suspects on reasonable ground that the Customer may have committed or may be committing:
15.4.5.1.          a breach of Law; and/or
15.4.5.2.          any fraud against Vivid or any third party.
15.4.6. the Customer fails to meet a reasonable standard of creditworthiness; or
15.4.7. any contract between Vivid and a third party provider of telecommunications services is terminated where such termination affects
the provision of the Services.
15.5.    If Vivid requests the Customer to do so but the Customer fails to return to Vivid (or as otherwise notified to the Customer by Vivid) the Order Form duly signed by the Customer within 10 days of the Service Commencement Date (or any other date notified to the Customer by Vivid)
Vivid shall be entitled to (but not obliged) without notice to terminate the Contract or, without prejudice to its right so to terminate, to downgrade or suspend the Services at it thinks fit.
15.6.    On termination of the Contract by reason of the Customer’s breach of the Contract or other default, the Customer shall be liable to pay Vivid 100% of the Charges that would otherwise have been payable by the Customer during the Minimum Period.  Such sum to be calculated by taking the average monthly Charges incurred during the period from the Service Commencement Date to the date of termination multiplied by the
number of months remaining in the Minimum Period.  Such sums shall be paid by way of liquidated and ascertained damages by the Customer to Vivid and such sums are accepted by the parties as being a genuine pre-estimate of the net losses likely to be suffered by Vivid in such an event.
15.7.    The right to terminate the Contract shall not prejudice any other right or remedy of the Parties in respect of any rights, obligations or liabilities accrued prior to termination including, without limitation, termination under clause 8.7.

  1. Health and Safety

The Customer agrees to:

16.1.    pay due regard to all information supplied by Vivid relating to the use of the Equipment necessary to ensure the Customer Equipment will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person;
16.2.    indemnify Vivid in respect of any and all claims arising from the Customer Equipment being unsafe as a result of the Customer’s activities;

  1. Vivid Telecom Acceptable Use Policy

This Acceptable Use Policy (AUP) should be read in conjunction with the Vivid Telecom Agreement, which is provided to all clients when agreeing a contract for the provision of services.

The term ‘Client’ within this policy refers to the person with whom Vivid Telecom has entered into a contractual relationship. For the purposes of this document the term is equally applicable to resellers/partners and direct clients of Vivid Telecom, and other companies within the Vivid Telecom group.

The term ‘End User’ within this policy refers to the person or persons who are utilising the Vivid Telecom provided service, whether directly or indirectly as part of a solution supplied by a Vivid Telecom Reseller. Examples of End Users include but are not restricted to:customers of Vivid Telecom Reseller Clients; employees and other authorised computer users of Vivid Telecom Direct Clients.

Introduction

The AUP has been designed to protect Vivid Telecom, Client’s resources, and peering networks in order to maintain the provision of high speed network and high availability services whilst ensuring that as an Internet Service Provider, we comply with all relevant UK laws.

Vivid Telecom offer Clients a range of quality, competitively priced network and information technology services. It is the responsibility of our Clients to ensure that all End Users of these services comply with the latest edition of the AUP at any given time.

General Guidelines

Any use of the Vivid Telecom network or of the Internet services operated on or via the network, such as World Wide Web, e-mail, news, gopher or Telnet services, will be admissible solely within the framework of the applicable provisions specified by English law and within the framework of the service offering contractually agreed upon with the Client.

Specifically, this means that the ‘Vivid Telecom’ network must not be used for sending, receiving or distributing content that:

  1. constitutes offences such as sedition; forbidden extremist political propaganda; invasion of personal privacy including insult, libel and defamation; or distribution of pornographic literature, or
  2. is indecent, defamatory, obscene or menacing or otherwise offensive, or
  • violates a third party’s rights such as the right to bear a name, the right of personality, copyrights, competition and trademark laws. The End User must also observe the legal provisions concerning data protection and the protection of a third party’s privacy.

 

In addition to the above, the services operated by Vivid Telecom must not be used for improper purposes.

Such improper purposes include any use that impairs the integrity and performance of the network or its parts and dial-in points to an extent exceeding what has been contractually agreed upon. Misuse also includes the use of the network for distributing, loading or publishing data that could violate or impair a third party’s rights or constitute threat or insecurity to a third party.

It is not admissible to use the services available on or via the Vivid Telecom network for obtaining data or information that is not intended for the End User. This also includes the misuse of the services for the purpose of copying, tapping or intercepting e-mail messages or other digitally transmitted information that is not intended for the recipient.

It is not admissible to use the services for circumventing security mechanisms that protect foreign computers or computer systems, networks or network access facilities, for gaining unauthorised access to foreign computer systems (“hacking”), for performing activities in preparation for the unauthorised access to a foreign computer system (e.g. port scans) or for impairing the performance of a computer,  computer system or network to an extent that goes beyond the services commonly rendered (“denial of service” attacks).

It is not admissible to use the services for distributing programs that serve the purpose of either causing damage to other users or computer systems (e.g. virus infection programs) or gaining unauthorised access to foreign computer systems (“Trojan horses”).

Vivid Telecom’ Clients are responsible for taking all reasonable measures to control traffic that is sent from their End Users connections. It is their responsibility to ensure that all software on their side of the connection is virus-free and up-to date with all relevant security patches.  In particular, server software running on public-facing ports, such as mail servers and proxy servers, must not be remotely exploitable.

If Vivid Telecom find malicious traffic emanating from an End User connection, we have an obligation to our other Clients and peering networks to take urgent measures to block that traffic. In many cases, this can be achieved by selective port blocking, but in other cases, this will involve disconnecting and suspending the account until the issue has been resolved. Vivid Telecom understands that in many cases, the Client may not be responsible for or aware of a problem, and will work with the Client to resolve the issue as efficiently as possible to restore normal service.

End Users may not mount an attack, by whatever means, against any of the Vivid Telecom systems. End Users may not run unauthorised mailing lists from, or through any of the Vivid Telecom machines, or e-mail servers.

The Internet has global reach and, although the Master Services Agreement is governed under English law, Clients must take all reasonable steps to avoid breaching relevant foreign laws.

Internet Access

The use of the network circuits that provide access to the Vivid Telecom network is restricted to Clients and End Users having a contractually agreed access right, which has been granted either by Vivid Telecom itself or by any of its partners being authorised to grant such access rights.

The End User is not allowed to transfer his/her access right; neither directly nor indirectly, to any third party without Vivid Telecom’ express consent. This excludes persons involved in the client’s business operations or persons sharing a common household with the End User.

The access and authentication data that is given to the End User for access to the Vivid Telecom’ network must be protected at all times. Passwords protecting the access to the network must be kept confidential, checked and modified if unauthorised use by a third party is suspected.

Electronic-mail

It is not admissible to distribute e-mail messages to persons not wishing to receive such messages, especially in the event that the distribution of such electronic mail is done for the purpose of confronting a single person or numerous persons with unwanted commercial advertising, political statements or announcements or any kind. The Client and End Users must refrain from sending such and similar messages to news groups; this applies in particular to the distribution of such e-mail to multiple news groups (“cross-posting”). It is also inadmissible to send multiple e-mail messages for the purpose of impairing or paralysing the recipient’s e-mail or news service (“mail bombing”).

It is not admissible to modify or falsify the information that is contained in the header of an e-mail message or news article. Every Client and/or End User operating an e-mail service on the Vivid Telecom network must ensure that his/her service cannot be used by any third party

for the purpose of sending anonymous e-mail messages or distributing messages (“foreign relaying”) that might offend against the guidelines specified herein.

Policy Changes

Vivid Telecom reserves the right to amend this Acceptable Use Policy in line with changes in the Internet Service Provider sector. New versions of the AUP will be introduced at the rate of no more than one per calendar quarter, with the most recent version always being available on our website http://www.vividtelecom.com/terms.php

  1. General

18.1.    Each right or remedy of Vivid under the Contract is without prejudice to any other right or remedy of Vivid, whether or not under the Contract.

18.2.    If any provision of the Contract is found by any competent authority to be invalid, unenforceable or unreasonable, it shall be severed from the remainder of the Contract which shall (subject to termination at the discretion of Vivid), continue in full force and effect.

18.3.    Failure or delay by Vivid in enforcing or partially enforcing any provision of the Contract is not a waiver of any of its rights under the Contract.

18.4.    Any waiver by Vivid of any breach by the Customer is not a waiver of any subsequent breach.

18.5.    Any notice to be given by either party to the other under these Conditions must be in writing addressed to that other party at its registered
office or principal place of business or such other address as may have been notified for these purposes.

18.6.    Notice addressed to Vivid shall be marked for the attention of the Company Secretary.

18.7.    Notices shall be delivered personally or sent by first call post or sent by facsimile transmission.

18.8.    A notice is deemed to have been received:

18.8.1. if delivered personally, at the time of delivery;

18.8.2. if sent by prepaid first class post, on the second working day after posting (exclusive of the day of posting);

18.8.3. if sent by facsimile transmission, on a working day prior to 4.00pm at the time of completed transmission and otherwise on the next
working day.

18.9.    The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it by virtue of
the Contacts (Rights of Third Parties) Act 1999.

  1. Assignment

19.1.    Vivid may assign, subcontract or otherwise transfer the Contract or any part of it and may dispose of or deal in any manner with
any of its rights or beneficial interests under it.

19.2.    The Customer may not assign the Contract or dispose of or deal in any manner with any of its rights or beneficial interests under it.

  1. English Law

20.1.    The Contract shall be governed by English Law, and the parties submit to the exclusive jurisdiction of the English courts.

20.2.    Clause 15.1 is for the benefit of Vivid only and as a result Vivid shall not be prevented from taking proceedings in any other courts with jurisdiction, whether concurrently or not.