Dedicated Business Fibre Customer Terms of Service

These Terms are effective from 5 December 2023

1. DEFINITIONS

1.1. In these Terms, the following words and expressions shall have the meanings given to them below:

“Additional Services” means any Additional Static IP Address and any other supplementary Services and features from time to time provided by Hyperoptic in connection with the Dedicated Business Fibre Service.

“Agreement” means the Agreement described in Clause 2.

“Additional Static IP Address(es)” means any static IP address(es) which is/are provided to the Customer by Hyperoptic at the Customer’s request, and which is not included in the Customer’s monthly Package Charge.

“Apparatus” means any apparatus which Hyperoptic installs, or arranges to be installed, at the Premises.

“Applicable Law” means any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance, standard or industry code, rule of court or directives or requirements of any government or regulatory body, delegated or subordinate legislation or notice of any government or regulatory body and the common law and the law of equity as from time to time applicable to the parties.

“AUP” means Hyperoptic’s Acceptable Usage Policy (viewable at www.hyperoptic.com/legal/post/acceptable-usage-policy), as updated from time to time.

“Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a public holiday in England and Wales.

“Business Support” means Hyperoptic’s Business Support Team which can be contacted by emailing business.support@hyperoptic.com or by telephone on 0333 332 1123.

“Charges” means any or all charges payable to Hyperoptic in respect of the Services as set out in the Dedicated Business Fibre Order Form and/or an Order Confirmation and as detailed in Appendix 2 to these Terms.

“Claims” means all third party claims, actions or proceedings brought or threatened against Hyperoptic arising in connection with the use or misuse of the Services or any breach by the Customer of the terms of this Agreement, as set out in Clause 10.1(i).

“Complaints Code of Practice” means Hyperoptic’s Complaints Code of Practice (viewable at www.hyperoptic.com/legal/post/code-of-practice) which sets out how Hyperoptic’s domestic customers as well as its “small business customers” and “small not-for-profit customers” (as more particularly defined in Clause 15.3 and in the Complaints Code of Practice) can make a complaint about Hyperoptic and/or its Services and how they can take such complaints further, if so required.

“Contract Information Document” means the “Contract Information” document, which is prescribed by Ofcom as to form and information content requirements, and which is provided to the Customer during their Order process, where their Agreement starts on or after 17 June 2022.

“Contract Summary Document” means the “Contract Summary” document, which is prescribed by Ofcom as to form and information content requirements, and which is provided to the Customer during their Order process, where their Agreement starts on or after 17 June 2022.

“Customer” means the business customer entering into the Agreement.

“Customer Owned Wiring” means the Customer’s cabling at the Premises that distributes the Dedicated Business Fibre Service from the Hyperoptic Distribution Point to the end users in the Premises and is the responsibility of the Customer.

“Dedicated Business Fibre Order Form” means the order form (either in paper, electronic or other online format) for a Package and/or Additional Services which the Customer fills in and submits (as per Hyperoptic’s instructions) to order Services upon these Terms.

“Dedicated Business Fibre Service” means the internet service provided by Hyperoptic comprising a dedicated connection between the Customer’s Premises and the local exchange, which is included in the Customer’s chosen Package..

”Direct Debit Return Fee” means the £10 Charge which Hyperoptic may charge a Customer each time any of that Customer’s direct debit payments to Hyperoptic under the Agreement is not honoured for any reason, as set out in Appendix 2 to these Terms.

“Excess Construction Charge” or “ECC” means any Charge relating to extra work identified as required to deliver an Order, during any part of the Survey. The extra work may include (but is not limited to) ductwork, civils and blown fibre installation. The Customer will be exempt from the first £2,800 (excluding VAT) of the cost of such work, the ECC being any amount in excess of this. The Customer will be notified of any ECC in accordance with Clause 6.2.

“Force Majeure” means any event beyond Hyperoptic’s reasonable control including, without limitation, lightning, flood, earthquake, severe weather, other natural disaster, fire, collapse of buildings, explosion, accident, terrorist activities, war, civil disorder, epidemic or pandemic, non-performance by suppliers or subcontractors, damage or vandalism to the Network or Apparatus, acts or omissions of local or national governments or other competent authorities (including, without limitation, the introduction of new laws, rules, regulations or guidance), strikes or industrial disputes.

“Hyperoptic” means Hyperoptic Ltd, registered in England and Wales with company number 07222543 and having its registered office at Kings House, 174 Hammersmith Road, London, W6 7JP.

“Hyperoptic Distribution Point” means the termination point of Hyperoptic’s Network at the Premises and is also, to the extent there is any Customer-Owned Wiring at the Premises, the point of demarcation between Hyperoptic’s Network and such Customer Owned Wiring.
“Installation Fee” means the Charge payable by the Customer for Hyperoptic to install Apparatus at the Premises in order to provide the Dedicated Business Fibre Service, as set out in Appendix 2 to these Terms, which Charge also includes the cost of any relevant Survey.

“Installation Work” means any installation work necessary to carry out the Order.

“Minimum Period” means, in relation to each Package, the minimum commitment period that the Customer has agreed to in relation to that Package (as stated in the applicable Dedicated Business Fibre Order Form) starting from the applicable Services Start Date.

”My Account” means the ”My Account” section of the Website, through which the Customer (by entering its username or registered email address and password) can access and make certain changes to its account details and can view its latest invoices.

“Network” means the network utilised by Hyperoptic to provide the Services.

“Order” means a request for provision of the Services submitted in the form required by Hyperoptic or in such other form as acceptable to Hyperoptic.

“Order Cancellation Fee” means the one-off Charge, payable on demand, if the Customer cancels an Order prior to the Services Start Date, as detailed in Appendix 2 to these Terms. This Charge relates to the cost Hyperoptic has incurred in arranging and carrying out any works in relation to installing the Services, including any Survey. If cancellation is prior to the Installation Work being confirmed and/or scheduled, the Order Cancellation Fee will relate to the cost of the Survey only.

“Order Confirmation” means the email sent to the Customer by Hyperoptic confirming and accepting the Customer’s Order, as set out in Clause 2.4.

“Package” means any of Hyperoptic’s packages for Dedicated Business Fibre Services (as set out in https://www.hyperoptic.com/broadband/business/).

“Package Charge” means the Charge payable to Hyperoptic monthly advance, in relation to a Package and as set out in the Customer’s Dedicated Business Fibre Order Form. Charges for Additional Services are not included in the Package Charge.

“Premises” means the address specified in the Dedicated Business Fibre Order Form as the premises to at which the Services are to be supplied.

“Privacy Policy” means Hyperoptic’s Privacy and Cookie Policy (viewable at www.hyperoptic.com/legal/post/privacy-and-cookie-policy), as amended from time to time.

“Qualifying Fault” has the meaning given to it in paragraph 4.2 of Appendix 1 to these Terms.

“Re-activation Fee” means the one-off Charge, payable on demand, for Hyperoptic to reactivate a Customer’s Services once they have been terminated or suspended, as set out in Appendix 2 to these Terms.

“registered email address” has the meaning given to it in Clause 2.8.

“Services” means the Dedicated Business Fibre Service, any related services provided by Hyperoptic as part of the Customer’s Package, and/or any Additional Services ordered from time to time ordered by the Customer, as set out in an Order and subject to an Order Confirmation under Clause 2.4.

“Service Credits” mean the deduction from a monthly invoice for any breach of the Service Level Agreement by Hyperoptic, as set out in the Service Level Agreement at Appendix 1.

“Service Level Agreement” or “SLA” means the performance targets and metrics that Hyperoptic agrees to achieve in the course of delivering the Dedicated Business Fibre Service, as set out in Appendix 1.

“Services Start Date” means, in relation to a Package, the date on which Hyperoptic completes delivery of the Dedicated Business Fibre Service being provided in that Package, assigns an IP address to that Service and emails the Customer to notify it that the Service has been activated. In relation to any Additional Service, it means the date Hyperoptic starts providing such Service and notifies the Customer by email of the same.

“Service Termination Fee” means the one-off Charge payable by the Customer, at Hyperoptic’s demand, if the Package is terminated at any time from the Services Start Date until the end of the Minimum Period for that Package. The amount of the Charge will equal the aggregate monthly Package Charge payments remaining from the time of such termination until the end of the applicable Minimum Period, as set out in Appendix 2 to these Terms.

“Static IP Address Fee” means the monthly Charge (as advised by Hyperoptic) for any Additional Static IP Address that the Customer may request from Hyperoptic (i.e. in addition to any static IP address(es) included in the Customer’s Package Charge), which Hyperoptic may provide, if available.

“Survey” means the survey carried out by or on behalf of Hyperoptic, once it has accepted an Order, in connection with ascertaining the scope of works necessary in carrying out the Installation Work for that Order.

“Term” means, in relation to each Service, the period from the relevant Services Start Date until termination of the Agreement in relation to such Services.

“Terms” means these Dedicated Business Fibre Customer Terms of Service.

“Website” means www.hyperoptic.com or any other website address notified by Hyperoptic to the Customer.

1.2 References herein to a “party” are to either Hyperoptic or the Customer and to “parties” are to both of them.

1.3 References herein to “Clauses” are to the clauses comprising these Terms. Headings used herein are for guidance only and shall not affect the interpretation of this Agreement.

2. ORDERS

2.1 The Customer shall contact Hyperoptic to enquire whether and how Hyperoptic can provide a Dedicated Business Fibre Service at the Premises and following initial discussions between Hyperoptic and the Customer, if the Customer wishes to proceed towards an Order, Hyperoptic will verify the Premises. If the Premises appear suitable for a Dedicated Business Fibre Service, the Customer will be sent a Dedicated Business Fibre Order Form, which will include the Installation Fee that Hyperoptic will charge the Customer for such Dedicated Business Fibre Service.

2.2. The Customer may request provision of the Services by filling in and submitting to Hyperoptic, in the manner instructed by Hyperoptic, the Dedicated Business Fibre Order Form. Submission of a Dedicated Business Fibre Order Form represents acceptance by the Customer of these Terms and, subject to Clause 2.5, shall create an Agreement between the parties incorporating the following documents:
(i) these Terms;
(ii) the Customer’s Order (as set out on the relevant Dedicated Business Fibre Order Form and/or in the Order Confirmation);
(iii) the latest applicable Contract Information Document (if relevant);
(iv) the latest applicable Contract Summary Document (if relevant);
(v) the Privacy Policy (see www.hyperoptic.com/legal/post/privacy-and-cookie-policy ; and
(vi) the AUP (see www.hyperoptic.com/legal/post/acceptable-usage-policy.

2.3. In the event of any conflict between the documents referenced in Clause 2.1, they shall be accorded priority in the order listed in that Clause save in the event of a conflict relating to pricing and/or the SLA, where the Customer’s Order (as described in Clause 2.2(ii)), the Contract Information Document and the Contract Summary Document shall take precedence.

2.4. After the Customer submits the Dedicated Business Fibre Order Form, it is checked by Hyperoptic’s business sales team to see whether it includes all requisite information or whether further detail and/or clarification is needed. Once Hyperoptic decides it has all the information it requires at this stage, if it decides to accept the Order (Hyperoptic may accept Orders in its sole discretion) it will send the Customer an Order Confirmation. This is the only way Hyperoptic will accept an Order. Once the Order Confirmation is sent, the Order shall be binding on both parties.

2.5. Each binding Order for a Dedicated Business Fibre Package and/or Additional Service shall create a separate Agreement between the parties governing provision of that or those Services. Any Order requesting the addition or removal of an Additional Service to a previously accepted Order or requesting transfer to an alternative Package (as provided in Clause 6.5) shall be deemed an amendment to the Agreement between the parties relating to the original Order for those Services, reflecting the version of these Terms in force at the date of such amendment. Further, the Minimum Period in relation to any such transfer to an alternative Package shall be subject to Clause 6.5.

2.6. If having accepted an Order, Hyperoptic is unable to deliver the Services as agreed Hyperoptic shall be entitled to cancel the Order and/or terminate the Agreement by notice to the Customer and shall repay to the Customer any amounts already paid by it in respect of such Service(s).

2.7. The Customer warrants that it contracts as a business customer and not as a consumer and that all information provided by it during the Order process and/or during the term of the Agreement is complete and accurate in all respects and is not misleading.

2.8. When ordering Services, the Customer shall provide Hyperoptic with a valid email address which Hyperopic will register, along with any other details relevant to the Customer’s account with Hyperoptic. Hyperoptic will usually use this “registered email address” to contact the Customer though may also contact the Customer in writing at the Customer’s billing address or by telephone on any mobile or fixed telephone number the Customer has provided to Hyperoptic. The Customer agrees to:
(i) keep such registered email address active and available;
(ii) regularly check emails sent to such registered email address; and
(iii) keep details in relation to its account with Hyperoptic up to date. Where it is no longer possible for the Customer to keep such registered email address active, it must register a new email address with Hyperoptic which will then become the customer’s new “registered email address”. The Customer can make any changes to its email information by accessing its account with Hyperoptic through the “My Account” section of the Website or by contacting Business Support by telephone or email. The Customer will be treated as having read any email which Hyperoptic may send to the Customer’s then current registered email address.

3. SERVICES

3.1. Hyperoptic shall provide each Service from the relevant Services Start Date for the Term on and subject to the terms of the Agreement.

4. APPARATUS

4.1. The Customer acknowledges and agrees that:
(i) the Apparatus remains the property of Hyperoptic or, if applicable, Hyperoptic’s contractors, may be used only to access the Services and must be retained at the Premises during the term of the Agreement and thereafter, unless Hyperoptic agrees otherwise in writing;
(ii) the Charges have been calculated on this basis; and
(iii) if any Apparatus is damaged or removed, the Customer will be liable to pay the then current cost of installation and/or replacement.

4.2. The Customer shall not:
(i) do anything or allow anything to be done at the Premises that may cause damage to or interfere with the Apparatus or prevent use or easy access to it; or
(ii) without prejudice to the generality of the foregoing, interfere or tamper with, sell, charge, mortgage or otherwise deal in or obstruct or remove or obscure notices attached to the Apparatus or allow any third party to do any of the foregoing.

5. ACCESS TO PREMISES AND PERMITS

5.1. The Customer warrants that it is the current occupier of the Premises and either the freeholder of the Premises or a tenant under a lease with permission to install the Apparatus at the Premises from the freeholder.

5.2. The Customer hereby:

(i) grants to Hyperoptic a licence to perform such works as may be required to install the Apparatus at the Premises, to retain and use such Apparatus so-installed and to connect to, maintain, alter, replace and/or remove the same; and
(ii) agrees to grant access to the Premises for Hyperoptic, its employees, agents and/or subcontractors to inspect the Apparatus and perform the tasks set out in (i).

5.3. Hyperoptic shall cause as little disturbance at the Premises as reasonably practicable and shall repair, to the Customer’s reasonable satisfaction, any damage occasioned by it.

5.4. The Customer shall follow any reasonable instructions given by Hyperoptic in relation to the Apparatus and shall ensure that a representative is present at the Premises whenever access is required.

5.5. The Customer shall obtain any consent or permission that might be required from a third party to cross their land or install Apparatus on their premises, including procuring signature of a wayleave agreement in such form as Hyperoptic may reasonably require. Hyperoptic is not obliged to install or provide the Services unless all consents and permissions have been obtained. If the Customer fails to procure any necessary consent or permission Hyperoptic may terminate the Agreement (with immediate effect, if Hyperoptic so wishes).

6. INSTALLATION AND CONNECTION

6.1. The Customer’s connection to the Dedicated Business Fibre Service shall be at and from the Hyperoptic Distribution Point.

6.2. Once the Survey has been carried out, Hyperoptic will notify the Customer in writing of any Excess Construction Charge (“ECC”) applicable to the Order. An ECC will apply if extra work is identified as required as a result of the Survey and the cost of such work is in excess of £2,800. The ECC will be the amount of such cost which exceeds £2,800. If the Customer is notified of any ECC in accordance with this Clause, it has up to fifteen (15) Business Days to review and accept the Charge or cancel the Order (no Installation Work will be scheduled for such a Customer unless and until that Customer accepts this Charge). If the Customer so cancels the Order, Hyperoptic may charge such Customer an Order Cancellation Fee, which shall cover the cost of the Survey. If and once the Customer accepts the ECC, or if the Survey shows that there will be no ECC, Hyperoptic will arrange for Installation Works to begin. If the Survey shows that the Order cannot be carried out Hyperoptic will notify the Customer of the same and Clause 2.6 will apply.

6.3. Following completion of the Installation Work, Hyperoptic shall assign to the Customer a single static IP address which is free of charge. The Customer may request further static IP addresses from Hyperoptic, which Hyperoptic may provide, if available, for a monthly Charge (the amount of which Hyperoptic shall advise the Customer on enquiry). Any static IP address provided by Hyperoptic under this Clause 6.3 or otherwise under any Order remains the property of Hyperoptic and is for use solely in connection with the Dedicated Business Fibre Service. The Customer cannot sell it or agree to transfer it to anyone else and must not try to do so. It shall revert to and may be reassigned by Hyperoptic on disconnection or discontinuance of the Services or on termination of the Agreement.

6.4. The speed and performance of the Dedicated Business Fibre Service will depend on a number of factors some of which are outside Hyperoptic’s control. Any applicable Contract Information Document and/or Contract Summary Document which Hyperoptic sent to the Customer will set out speed-related information about the Customer’s Dedicated Business Fibre Service. Hyperoptic does not warrant or represent that the Dedicated Business Fibre Service connection will reach any given speeds or that maximum transmission speeds can be obtained at any given time. Hyperoptic shall use its reasonable endeavours to deliver the Dedicated Business Fibre Service according to the Service Level Agreement and to inform the Customer of any issues affecting the Services as soon as reasonably practicable.

6.5. The Customer may change its chosen Package to any other Package then available at the Premises and may add or remove any Additional Service from the Services by making a request to this effect (by email, telephone or letter) and then completing and returning (in the manner specified by Hyperoptic) any form that Hyperoptic then provides, in order to confirm the change(s). Any such transfer to a new Package (where this occurs during a Minimum Period of the old Package) shall result in the Minimum Period of the new Package being whichever is longer – the remaining time of the old Package’s Minimum Period or the full Minimum Period that would otherwise apply to the new one. The Minimum Period of the new Package shall start on its Services Start Date.

6.6. The Customer agrees that any dates provided by Hyperoptic in relation to delivery of the Dedicated Business Fibre Service are estimates only. Other than as set out in Appendix 1, Hyperoptic shall not be liable to the Customer in contract, tort (including negligence or breach of statutory duty) or otherwise for any delay in installing or activating the Services or otherwise for any failure to achieve such dates.

6.7. Hyperoptic’s sole obligation hereunder is to make the Services available to the Customer. The Customer shall be responsible for ensuring it is able to access the Services including for ensuring that it uses a router or Ethernet cable capable of connecting to the Services. Hyperoptic shall have no liability to the Customer in contract, tort (including negligence or breach of statutory duty) or otherwise under or in connection with this Agreement for the Customer’s failure to access the Services.

7. PAYMENT TERMS AND CHARGES

7.1. The Customer shall pay the Charges and any VAT that may apply in relation to them in accordance with this Clause 7. The Charges are as agreed in the terms of the relevant Order, or, if not so agreed, as stated in Appendix 2 to these Terms and as these amounts are updated from time to time in accordance with Clause 17.

7.2. All recurring Charges are payable from the relevant Services Start Date and shall be collected (along with any applicable VAT) via direct debit, in advance. One-off Charges (along with any applicable VAT) are payable as incurred.

7.3. The Customer will receive the first invoice relating to the Services on the day after the Services Start Date for their first Order under this Agreement. This invoice will include a Package Charge amount (and, if applicable, a Static IP Address Fee) for the first month of Services, as well as any applicable Installation Fee and ECC. The Customer will receive all subsequent monthly invoices (for the next month's Package Charge amount (and, if applicable, Static IP Address Fee)) on the same date in the month as the Services Start Date (or, for any month where that date does not exist, on the last day of that month). The amount set out in an invoice (plus any applicable VAT thereon) will be debited from the Customer’s bank account, as agreed when the Order was placed, fourteen (14) calendar days after the invoice date. If this direct debit fails, Hyperoptic may attempt to take the invoiced amount by direct debit again, 5 Business Days later.

7.4. Each invoice will be issued and available for the Customer to access, via the “My Account” section of the Website and/or emailed to the Customer in PDF format, fourteen (14) calendar days prior to the date the payment is due. Hyperoptic will notify the Customer when a new invoice has been issued.

7.5. When the Customer places an Order, it must provide its bank account details and agree to pay invoices in respect of its Services by direct debit. The Customer shall pay all Charges by direct debit only save that the Customer may, if Hyperoptic agrees, use a Hyperoptic-approved debit or credit card to pay any Installation Fee or Order Cancellation Fee. The Customer shall notify Hyperoptic immediately of any change in its bank details it previously notified to Hyperoptic in connection with its Services. Hyperoptic may charge a £10 “Direct Debit Return Fee” by way of compensation for any direct debit payments which are not honoured for any reason. Further, Hyperoptic may charge the Customer a Re-activation Fee (as set out in Appendix 2 to these Terms) where it re-activates the Customer’s Services, after those Services have been suspended or disconnected due to the Customer’s breach of these Terms or otherwise due to the Customer’s act or omission.

7.6. The Customer shall pay all sums due in full on or prior to the due date, as provided in Clause 7.3. No deductions or withholdings are permitted except as required by law.

7.7. Hyperoptic may charge interest on overdue amounts from the due date until payment in full (whether before or after judgment) at the annual rate of four percent (4%) per annum above the base rate of Barclays Bank plc from time to time.

7.8. Calls to Business Support will be charged at standard local landline call rates and may therefore be included in any applicable call packages from your provider.

7.9. If the Customer disputes the amount of any invoice, it shall notify Hyperoptic forthwith and shall pay any amounts not disputed. Hyperoptic will not suspend or end the Services while it investigates any dispute notified to it as provided in this Clause 7.9.

7.10. All prices shown on an Order, on the Website at www.hyperoptic.com/business and in Appendix 2 to these Terms are exclusive of VAT, which may be charged as applicable and shall be payable as provided in this Clause 7.

8. SERVICE INTERRUPTIONS

8.1. Hyperoptic may from time to time:
(i) alter, interrupt, suspend or make changes to the Services for operational or technical reasons; and/or
(ii) make changes to technical specifications, including limits for transferring information which are associated with the Services. Where such action leads to a breach of the SLA, Hyperoptic will pay such Service Credits as are required under the SLA.

8.2. Hyperoptic shall take all reasonable steps to minimise the effect of any interruptions or disruptions and try to restore the Services as soon as reasonably possible but the Customer acknowledges and agrees that:
(i) it is technically impossible for Hyperoptic to provide uninterrupted or fault-free Services;
(ii) no warranty or representation is made in respect of the same; and
(iii) all implied terms to such effect are excluded. Where such interruptions or disruptions lead to a breach of SLA, Hyperoptic shall pay such Service Credits to the Customer as are required under the SLA.

9. TERM OF AGREEMENT, SUSPENSION, RESTRICTION AND TERMINATION

9.1. As provided in Clause 2, the Customer offers to purchase Services on these Terms when it submits an Order and the Agreement between the parties starts on the date Hyperoptic accepts the Order.

9.2. The Services shall be provided with effect from the relevant Services Start Date. Hyperoptic may terminate the Agreement with immediate effect in relation to any Services without liability at any time prior to the Services Start Date:

(i) if the Customer fails a credit check;
(ii) if the bank, debit or credit card details provided to Hyperoptic are not valid or incorrect;
(iii) if the Customer fails to pay any Charges when due;
(iv) if the Customer has previously misused services provided by Hyperoptic;
(v) if Hyperoptic is unable to provide the Services to the Premises for any reason; or
(vi) for any other (or no) reason at its sole discretion.

If Hyperoptic terminates the Agreement as provided in this Clause 9.2 other than as a result of the Customer’s act or omission (which shall include the reasons set out in (i) to (iv) in the preceding sentence), any Charges paid by the Customer in respect of the relevant Services shall be refunded.

9.3. The Customer may cancel the Services at any time prior to the relevant Services Start Date, subject to payment of the Order Cancellation Fee.

9.4.1 If. in relation to the Premises, the Customer decides to switch, from the Services, to another provider’s broadband services, under an Ofcom-prescribed switching process carried out by that other provider, that other provider may contact Hyperoptic directly (with the Customer’s permission) to arrange for the Services to end automatically (Hyperoptic’s Business Customer Switching Guide sets out how this should happen). In such a case, Hyperoptic shall terminate the Services as soon as technically possible after receiving notification from the other provider that the other provider has activated the Customer’s new (switched) services. Note that Hyperoptic shall treat any switch request received from that other provider as notice to terminate the Services per that request. If the switch completes within 30 days from the date of that request, Hyperoptic shall nevertheless be entitled to charge the Customer as if the Customer had received the Services for 30 days following that request. Any switch that completes during a Minimum Period relating to the relevant terminated Services shall be subject to payment of the applicable Service Termination Fee.

9.4.2. The Customer may terminate the Agreement, a Package or any Service (in circumstances other than those set out in Clause 9.4.1) by giving Hyperoptic thirty (30) days’ written (by email or letter) notice , such thirty (30) day period to run from receipt by Hyperoptic of the same. Any such termination during the Minimum Period of a Package Service shall be subject to payment of the applicable Service Termination Fee, as detailed in Appendix 2 to this Agreement, which becomes immediately due upon such termination.

9.5. Hyperoptic may terminate the Agreement and any other agreement between the parties in respect of some or all Services or, at its option, restrict or suspend some or all of the Services immediately without notice if:

(i) The Customer fails to pay, by the due date, any money owed (although Hyperoptic will provide notification to the Customer’s current registered email address prior to taking this action) or cancels the direct debit for the Services without agreeing another form of payment;
(ii) the Customer misuses any of the Services in contravention of the AUP (viewable at www.hyperoptic.com/legal/post/acceptable-usage-policy);
(iii) Hyperoptic reasonably believes that the Customer has provided false, inaccurate or misleading information in connection with the Agreement;
(iv) Hyperoptic reasonably believes that the Customer or any user of the Services has committed or is committing a fraud by using the Services or the Apparatus (or both);
(v) a Customer representative acts towards Hyperoptic’s staff or agents in a manner that Hyperoptic considers inappropriate;
(vi) any permission or authorisation under which Hyperoptic is entitled to connect, maintain, modify or replace the Apparatus or provide the Services is suspended or ends for any reason;
(vii) in Hyperoptic’s reasonable opinion, it is necessary to do so for Hyperoptic to comply with an order, instruction or request of Government, an emergency services organisation or other competent administration or regulatory authority;
(viii) in Hyperoptic’s reasonable opinion it is necessary to do so for security, technical or operational reasons; or
(ix) on thirty (30) days’ written notice, for any other reason (or no reason) without cause.

9.6. Either party may terminate the Agreement on thirty (30) days' written notice to the other if:

(i) there has been a material breach of the Agreement by the other party which is not remedied within thirty (30) days of a written notice requiring such remedy;
(ii) an event, outside Hyperoptic’s reasonable control, prevents continued provision of the Services for a single period of more than thirty (30) days; or
(iii) the other party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986); becomes insolvent or bankrupt; is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); makes an application to a court of competent jurisdiction for protection from its creditors generally; has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets; enters into or proposes any composition or arrangement with its creditors generally; or if any legal action is taken or threatened against the other’s property or either party is subject to any analogous event or proceeding in any applicable jurisdiction.

9.7. The restriction or suspension of Services under this Agreement shall not relieve the Customer of its obligation to pay the Charges and if Hyperoptic terminates the Agreement in accordance with this Clause 9 or otherwise in accordance with the Agreement (other than without cause) it may invoice the Customer for and the Customer shall pay either:
(i) if the Customer is within the Minimum Period with respect to their Package, the Service Termination Fee along with Charges in respect of Additional Services as if the Customer were still receiving them for another thirty (30) days after their date of termination; or
(ii) if the Customer is not within such Minimum Period, an amount equal to what the Customer would have to pay for the Services if it were still receiving them for a further thirty (30) days after the date they were terminated.

9.8. Termination of the Agreement shall not affect:
(i) any obligations or rights of the parties which arose or accrued prior to, or which expressly survive, termination of this Agreement; or
(ii) the continuation in force of Clauses 4.1, 4.2, 5.2- 5.4,7, 8.2, this Clause 9.8, 10.2, 11, 13.4-13.7 and 16.
9.9. Unless Hyperoptic provides written consent to the contrary, the Customer acknowledges and agrees that:
(i) any Service is provided for use at and within the Premises only;
(ii) the Customer shall not resell the Service to other persons whether for profit or otherwise and shall not charge other persons for use of the Service; and
(iii) the Customer shall not use the Service to operate as an internet service provider (“ISP”) or to operate any server services to other persons (this includes without limitation HTTP/web, SMTP/mail and FTP/file transfer services).

10. USE OF THE SERVICES

10.1. The Customer shall ensure that all use of the Services is at all times compliant with the AUP. The Customer hereby indemnifies Hyperoptic in respect of:

(i) all third party claims, actions or proceedings brought or threatened against Hyperoptic arising in connection with the use or misuse of the Services or any breach by the Customer of these Terms or the Agreement (“Claims”); and

(ii) all costs (including legal costs), losses and damages arising in connection with such Claims.

10.2. The Customer shall keep all security information safe and promptly inform Hyperoptic of any improper disclosure of such security information or unauthorised use of the Services. Hyperoptic shall have no liability to the Customer in contract, tort (including negligence or breach of statutory duty) or otherwise for any costs, losses or damages caused by a third-party gaining access to the Services, the Apparatus or any equipment, software or data provided by the Customer.

10.3. The Customer shall ensure that any equipment and software used by it in connection with the Services and/or connected to the Network complies with all Applicable Laws and bears either the European Consumer Equipment Standards 'CE' mark or the UK’s Consumer Equipment Standards ‘UKCA’ mark, is compatible with the Apparatus and that the Customer has all necessary licenses required in connection with such use and connection.

11. LIABILITY

11.1. Hyperoptic’s duty in performing its obligations hereunder is to exercise the reasonable care and skill of a competent service provider only. Hyperoptic gives no warranty that the Services will be free of Faults or uninterrupted or (ii) the Apparatus will never be faulty.

11.2. Subject to Clause 11.5, neither Hyperoptic nor any other company in Hyperoptic’s group (nor any person connected with Hyperoptic or such other company) shall be liable in contract, tort (including negligence and breach of statutory duty) or otherwise under or in connection with the Agreement for any indirect or consequential loss or damage or for any of the following whether direct or indirect and whether or not reasonably foreseeable:
(i) loss of income or revenue;
(ii) loss of business or opportunity;
(iii) loss of profits or contracts;
(iv) loss of anticipated savings;
(v) loss, corruption or the release of data (including personal data), information or software;
(vi) loss of goodwill;
(vii) the cost of procuring substitute goods or services;
(viii) wasted management or office time;
(ix) losses from the Customer breaching the Agreement or using the Services in a manner that breaches the Agreement;
(x) loss or damage caused by malware or the unauthorised use of the Services on any of the Customer’s devices (or those of any other user of the Services);
(xi) losses from the failure of safety, security or other alarm system due to their incompatibility with the Services or for any other reason for which Hyperoptic is not at fault;
(xii) loss or damage from the Customer using any equipment not supplied by Hyperoptic; or
(xiii) claims against Hyperoptic arising from the breach of any implied term, condition or warranty, to the extent these can be excluded by law.

11.3. Subject to Clause 11.5, Hyperoptic shall not be liable in contract, tort (including negligence and breach of statutory duty) or otherwise under or in connection with the Agreement for any loss or damage incurred by the Customer or any user of the Services or the Website in connection with the use, inability to use, or results of the use of the Services, any equipment used in connection with the Services or the Website, any websites linked to it or accessed through the Network and any materials posted on the Website or on any such other websites, including losses from delays or interruptions to the Services, irrespective of whether such loss or damage was foreseeable save that this Clause 11.3 shall not preclude claims for:

(i) loss of or damage to tangible property arising from Hyperoptic’s negligence; or
(ii) any losses or damages arising out of Hyperoptic’s fraud.

11.4. Subject to Clause 11.5 and save as expressly set out in these Terms, Hyperoptic’s aggregate liability to the Customer in contract, tort (including negligence and breach of statutory duty) or otherwise under or in connection with this Agreement for any claims arising in any calendar year shall not exceed one hundred and twenty-five percent (125%) of the Charges due in that calendar year.

11.5. Nothing in the Agreement shall limit or exclude Hyperoptic’s liability for:
(i) death or personal injury arising from its (or its employees’, contractors’ or agents’) negligence;
(ii) fraud, fraudulent misrepresentation or misrepresentation as to a fundamental matter; or
(iii) any other liability which cannot be excluded or limited under Applicable Law.

11.6. Except as set out in Clauses 11.1 to 11.5, Hyperoptic accepts no liability for loss or damage caused by a person other than the Customer (or its employees acting in the course of their employment) accessing the Customer’s connection to the Services, any computer or device of the Customer, the Apparatus, or any equipment used in connection with the Services or accessing, destroying or distorting any data or information held by Hyperoptic.

11.7. Hyperoptic is not liable for goods or services supplied to the Customer (or to any other person using the Services) under a separate agreement with another supplier, even if they were acquired through the Network.

11.8. The Customer shall at all times be under a duty to mitigate any losses suffered by it.

12. FORCE MAJEURE

Hyperoptic shall not be liable in contract, tort (including negligence and breach of statutory duty) or otherwise if it is prevented, delayed or hindered in or from performing its obligations under the Agreement to the extent that this is attributable to Force Majeure.

13. OTHER GENERAL PROVISIONS

13.1. Failure by either party to exercise or enforce any right conferred by the Agreement or at law or in equity shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right or remedy on any later occasion. Except as expressly provided, remedies shall be deemed cumulative and not exclusive.

13.2. The Customer shall not assign or delegate all or any of its rights and obligations under the Agreement without Hyperoptic’s prior written consent.

13.3. The Customer acknowledges and agrees that Hyperoptic may make enquiries about the Customer for credit reference purposes, including searching records held by Experian, Equifax and/or any other credit reference agency or fraud protection scheme. Hyperoptic shall hold data relating to the Customer in accordance with the Privacy Policy (viewable at www.hyperoptic.com/legal/post/privacy-and-cookie-policy.

13.4. The Customer shall keep confidential all non-public information disclosed to it concerning Hyperoptic and its business. Hyperoptic shall use and retain information provided by the Customer in accordance with the Privacy Policy. The Customer’s obligations under this Clause 13.4 shall last for a period of one year from the date of disclosure.

13.5. Each term of the Agreement shall be treated as a separate provision. If a court, arbitrator or any government agency stipulates that any part of the Agreement is unenforceable, the remaining provisions of the Agreement will still be valid and enforceable.

13.6. No third party is entitled to enforce any term under the Agreement under the Contracts (Rights of Third Parties) Act 1999.

13.7. The Agreement sets out the entire agreement between the parties relating to the provision of the Services and supersedes any and all previous agreements and understandings with respect to such provision. The Customer acknowledges that it does not enter into this Agreement in reliance on any representation not contained in this Agreement and in the event of actionable misrepresentation (other than fraudulent misrepresentation) the only remedy available shall be a claim for breach of contract. All conditions, warranties and other terms which might otherwise be implied by law or equity are hereby excluded.

14. NOTICES

14.1. The Customer may contact Hyperoptic in any of the following ways: (i) by emailing Business Support at business.support@hyperoptic.com; (ii) by telephoning Business Support on 0333 332 1123; or, (iii) where the Agreement specifies that the Customer should contact Hyperoptic by letter, by writing to Hyperoptic at “Hyperoptic Business Support, Kings House, 174 Hammersmith Road, London, W6 7JP”.

14.2. Hyperoptic may contact and serve notices on the Customer by email at the Customer’s then current registered email address. It may also use the Customer’s postal address, mobile or fixed phone number, as it deems appropriate.

15. COMPLAINTS

15.1. To report any illegal or unacceptable use of Hyperoptic’s services, the Customer should email business.support@hyperoptic.com, providing full contact details and as much evidence as possible to assist Hyperoptic in investigating the matter (such as a copy of the message and/or headers, the full URLs or log files showing any unauthorised account access). To report any illegal or unacceptable use of the Services, the Customer should email business.support@hyperoptic.com, providing full contact details and as much evidence as possible (such as a copy of the message and/or headers, the full URLs or log files showing any unauthorised account access).

15.2. Hyperoptic has a procedure for handling complaints regarding breaches of the Agreement. Complaints should be made by email to business.support@hyperoptic.com or by contacting Business Support on 0333 332 1123. However, the Customer should note that where it has made a complaint by telephone, it must also confirm all relevant information in writing (by email or letter), in order for Hyperoptic to investigate the complaint properly.

15.3. Hyperoptic has a specific procedure for handling complaints from its residential customers, its “small business customers” and its “small not-for-profit customers”, details of which are set out in the Complaints Code of Practice (viewable at www.hyperoptic.com/legal/post/code-of-practice). For this purpose:
(i) “small business customer” means any of Hyperoptic’s business customers with 10 or fewer individual workers (including volunteers); and
(ii) “small not-for-profit customer” means any of Hyperoptic’s business customers with 10 or fewer individual workers (excluding volunteers) and which, under its own constitution or by law, is (a) required (after paying its expenses/outgoings) to use all its income, and any capital it spends, for charitable or public purposes and (b) prohibited from (directly or indirectly) distributing any of its assets to its members, except for charitable or public purposes).
If Hyperoptic is unable to resolve any complaint or dispute that such a small business customer or small not-for-profit customer may have in relation to Hyperoptic and/or its Services, that Customer may refer the matter to Communications Ombudsman, an independent dispute resolution service, which will be free for such Customer to use. Any such Customer should note that Communications Ombudsman will only deal with their complaint or dispute after that Customer has already followed Hyperoptic’s internal complaints procedure in full. Further details relating to Communications Ombudsman are set out in the Complaints Code of Practice (viewable at www.hyperoptic.com/legal/post/code-of-practice).

16. JURISDICTION AND APPLICABLE LAW

16.1 The 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 by and construed in accordance with the laws of England and Wales. Subject to Clause 15.3 above, the English courts shall have exclusive jurisdiction over any claim arising from, or related to, the Agreement, although Hyperoptic may initiate proceedings for breach of the Agreement in any other relevant country.

17. CHANGES TO THE CHARGES, THESE TERMS AND/OR THE SERVICES

17.1 Hyperoptic may at any time and from time to time amend the Agreement (including without limitation varying the Charges and making changes to the Services) by publishing such changes on the Website and/or by sending the Customer written notice of any such change to the Customer’s registered email address, except that where the Customer orders a Package on or after 05 December 2023, Hyperoptic shall not change the Package Charge for that Package during its Minimum Period, unless the change is directly imposed by law (e.g. a change in the rate of VAT). Subject to Clause 17.2, any changes introduced by Hyperoptic under this Clause 17.1 shall become binding on both parties upon such publication or other written notice.

17.2. If Hyperoptic makes any change to the Agreement or the Services then unless that change is exclusively for the Customer’s benefit, or is purely administrative with no negative effect on the Customer, or is directly imposed by law:

(i) Hyperoptic shall give the Customer not less than 30 days’ written notice via email of that change; and 

(ii) depending on the notified change, the Customer may be able to terminate the Agreement or the Service(s) affected by the change (Hyperoptic’s email notice will set out the options available to the Customer), without incurring any Charges for so terminating, as long as the such Customer gives Hyperoptic written notice (by email or letter) of its wish to terminate (in accordance with Hyperoptic’s email notice) such Services, within thirty days of the Customer receiving that notice.

17.2. Hyperoptic shall notify the Customer of any other changes to the Agreement via email.

APPENDIX 1: SERVICE LEVEL AGREEMENT

1. REPAIR

1.1. Hyperoptic commits to remedy all faults in relation to its Dedicated Business Fibre Service (“Faults”) within the timeframes set out in paragraph 2.1 below of the Customer correctly reporting the same. The Customer shall report all Faults by telephoning or emailing Business Support. The remedy time is calculated from the time a Fault is reported in accordance with this paragraph 1.1 and ends when Hyperoptic closes its maintenance log concerning such Fault.

1.2. Subject to paragraphs 1.3, 1.4 and 3 below, in the event that Hyperoptic fails to remedy any reported Fault within the period stated in paragraph 1.1, the Customer shall be entitled to the compensation set out in (and subject to the provisions of) paragraph 2. The Customer agrees that such payment represents the Customer’s sole remedy and Hyperoptic’s sole liability in contract, tort (including negligence) or otherwise for any breach of this paragraph 1.1, for Faults and for any other failures in the Services.

1.3. The SLA set out in paragraphs 1.1 and 1.2 shall not apply to any Fault falling within paragraph 4.1 of this Appendix 1.

1.4. To be eligible for Compensation Credits as detailed in paragraph 2, the Customer must notify Hyperoptic by telephoning or emailing Business Support. (For the avoidance of doubt, any such notification received from the Customer after this period shall not be eligible for any Compensation Credit.) Hyperoptic shall respond to the Customer’s claim within ten (10) Business Days of the Customer’s notification, with a statement clearly showing the Compensation Credit amount due, if any. The amount of Compensation Credit payable shall be decided in accordance with the terms of this Appendix 1.

2. COMPENSATION

2.1. Subject to paragraph 4 and any limitations in this and any other paragraph of this Appendix 1, a delayed repair will become eligible for a Compensation Credit if the reported Fault causes total loss of a Dedicated Business Fibre Service (i.e. no transmission of signals in one or both directions between the Hyperoptic Distribution Point and the limits of Hyperoptic’s Network):

(i) for more than six (6) hours after it has been reported to Hyperoptic (where the affected Dedicated Business Fibre Service is provided under a Package ordered before 27 July 2020); or

(ii) for more than five (5) hours after it has been reported to Hyperoptic (where the affected Dedicated Business Fibre Service is provided under a Package ordered on or after 27 July 2020),

in each case, such Fault report to be in accordance with paragraph 1.1.

2.2. Each reported Fault or series of connected reported Faults which falls within paragraph 2.1 shall count as one “Qualifying Fault” and the Customer shall be entitled to a Compensation Credit for each Qualifying Fault in accordance with paragraphs 2.2(i) and (ii) below, whichever applies.

(i) For Packages ordered before 27 July 2020, the Customer shall be entitled to Compensation Credits as follows:

The maximum Compensation Amount that the Customer can receive for Qualifying Faults in each twelve (12) month period (beginning on the applicable Services Start Date) during the term of the Agreement in relation to the relevant affected Dedicated Business Fibre Service is equal to 35% of the Customer’s annual aggregate Package Charge amount for that Service.
(ii) For Packages ordered on or after 27 July 2020, the Customer shall be entitled to a Compensation Credit for each Qualifying Fault comprising the following:

(a) an amount equivalent to the Customer’s Package Charge for one (1) day of their Dedicated Business Fibre Service during the period the Qualifying Fault is in effect (the “Per Day Package Charge Amount”), for every complete hour that the Fault remains a Qualifying Fault, capped in total at ten (10) times the Per Day Package Charge Amount; and

(b) if the Fault remains a Qualifying Fault for more than ten (10) hours, in respect of each consecutive calendar day (which startes after the calendar day during which those ten (10) hours expired) during which the Fault remains a Qualifying Fault, an amount equivalent to either 50% of the Per Day Package Charge Amount if the Fault is fixed by 1.00pm on that day or 100% of the Per Day Package Charge Amount if the Fault is not fixedby 1.00pm on that day, capped in total at ten (10) times the Per Day Package Charge Amount.

3. HOW HYPEROPTIC WILL PAY COMPENSATION

3.1. Any compensation that becomes due will normally be made by deduction from the Customer’s next invoice unless not practicable, in which case it will be made by deduction to a later invoice, or, if the Customer will be receiving no further invoices from Hyperoptic, by crediting the amount to the Customer’s bank account for which details were provided to Hyperoptic when the Customer submitted its Order.

3.2. In order to be eligible for any Compensation Credit, the Customer must make a claim for it in accordance with paragraph 1.4 of this Appendix 1.

4. WHAT IS NOT COVERED

4.1. The SLA and Compensation Credits set out in this Appendix 1 will not apply if and to the extent that:

(i) the relevant Fault or failure to repair it is due to a delay or default (which includes any action or inaction) attributable to the Customer, any equipment provided by the Customeror its suppliers, any device belonging to or being used by the Customer or other user of the Services, the Customer Owned Wiring, any network or equipment outside the Network, or a factor related to the Premises;

(ii) the relevant Fault or failure to repair it (a) results in Hyperoptic being unable to contact the Customer or carry out any necessary work at or gain access to the Premises when reasonably required, through no fault of Hyperoptic or due to circumstances beyond Hyperoptic’s reasonable control or (b) is due to the Customer failing to agree an appointment date with Hyperoptic or aborting necessary work in connection with the Services;

(iii) the relevant Fault or failure to repair it is due to (a) an inaccurate Dedicated Business Fibre Order Form being submitted (or other Order-related information being given) by the Customer, (b) the Customer otherwise being in breach of this Agreement, or (c) or Hyperoptic suspending or terminating the Services or any part of them in accordance with this Agreement;

(iv) through no fault of its (or their) own, Hyperoptic or its agents or contractors are either unable to obtain or there are delays in obtaining any necessary permissions or consents required in connection with repairing the relevant Fault;

(v) the relevant Fault or failure to repair it is due to a failure in the public internet;

(vi) the relevant Fault or failure to repair it is (i) due to a Force Majeure event or (ii) caused by anyone other than Hyperoptic or Hyperoptic’s agents or contractors (including without limitation Faults caused by the action or inaction of the Customer or of a third party supplier to the Customer) or a failure within equipment provided by the Customer or suppliers to the Customer or otherwise outside the Network;

(vii) the Customer and Hyperoptic agree a different timescale in writing (which shall include email) for performance in relation to any Installation Work (which includes the processing of Orders and the notification of ECCs) and/or repairing failures or Faults;

(viii) reasonable assistance (including the provision of access) is required or information is reasonably requested by Hyperoptic within a reasonable timescale from the Customer or any end user of the Services or a third party and such assistance or information is not provided;

(ix) the relevant Fault or failure to repair it is due to a planned or scheduled outage in relation to the Network or an interruption by any emergency service;

(x) the relevant Fault, where it relates to a required repair, is not reported in accordance with the provisions of paragraph 1.4; or

(xi) Hyperoptic is unable to find a Fault or the Customer cancels the Fault report prior to the Fault being remedied.

APPENDIX 2: SCHEDULE OF CHARGES

Hyperoptic Ltd is registered in England & Wales with company number 07222543 at: Kings House, 174 Hammersmith Road, London, W6 7JP

Telephone: 0333 332 1111

Website: www.hyperoptic.com

VAT registered number: 164 6525 96