Comms West Limited.

TERMS & CONDITIONS FOR BROADBAND INTERNET SERVICE – MAR 2023

1. Introduction

1.1   These terms and conditions set out the agreement between (1) You; and (2) Comms West Ltd, (Company Number SC749551). Our registered address is Swallowfield, Fassfern, Kinlocheil, Fort William, Scotland, PH33 7NP.

1.2   You must read Our terms and conditions carefully before ordering Our Service. You will be asked to confirm You have read and understood these            conditions before Your order can be accepted. By signing the Broadband Agreement (“Agreement”), You will be agreeing to be bound by these terms and conditions.

1.3   These terms and conditions apply to all Our Services; however, some promotional services may have their own additional terms and conditions which will be made clear as part of the promotion. We will tell You if any additional terms apply to Your order prior to placing Your order.

Definitions

As you read the terms and conditions of this Agreement, please note that:

“Comms West Limited”, “We”, “Our”, “Ourselves” and “Us” refers to Comms West Ltd.

“You”, “Your” and “Yourself” refers to the person or business who orders Our Service and enters into this Agreement. “Comms West Website” means the website owned by Us and located at www.commswest.co.uk.

“Equipment” means any of Our equipment including (without limitation) aerials, cabling and routers that We supply to You under this Agreement to enable You to receive Our Service.

“Internet” means the worldwide interconnection of individual networks, which have an agreement on how to talk to each other, and are operated by government, industry, academia, and private parties.

“In writing” or “written notice” means either by mail service or email. “Monthly Payment Amount” means any sums due from You to Us under the Agreement as set out in the Subscription Application Form.

“Minimum Term” means either 12 months or the minimum term specified on Your Subscription Application Form.

“Subscription Application Form” means the form provided to You by Us specifying, amongst other things, the Monthly Payment Amount, Minimum Term and Your details.

“Property” means the address to which the Service will be delivered.

“Service” or “Services” means the service or services You have ordered as detailed on Your Subscription Application Form.

“Signal” means the radiated bandwidth signal transmitted from Our radio mast(s) and used to carry digital data.

2. Installation of Our Equipment

2.1   Our obligation to provide the Service to You is subject to survey, when You confirm to Us that you wish to receive Our Service, We will instruct an engineer to conduct a survey at the Property. The purpose of the survey is to establish if the installation of the necessary equipment will be a standard or non-standard installation. A person who is over 18 and able to make decisions on your behalf must be present when We conduct the survey. They may be required to show the engineer the location of a suitable electrical supply to enable the Equipment to function as well as any other facilities which the       engineer may reasonably ask for.

2.2   The engineer will visit at a mutually agreed time and will need access to Your property. If the engineer cannot visit at the agreed time, We shall contact You to arrange a new appointment. We shall not be liable to You for any   delay in surveying, installing and/or connecting the Equipment.

2.3   In the event that it is determined that the installation will be a standard installation, this may carry a fixed installation fee which will be detailed on Your Subscription Application Form and will be payable by You in advance of the installation. The standard installation fee is non-refundable.

2.4   In the event that it is determined that the installation will be a non-standard installation, We will provide details of the cost of the non-standard installation which will be payable by You following receipt of an invoice from Us after the installation. The non-standard installation fee is non-refundable.

2.5   You agree to make Your property as safe as possible before Our engineer arrives to install the Equipment. Any hazards or concerns You have which may affect the safety of Our engineer, particularly if they need access to Your roof, must be notified to the engineer or Us before they begin work.

2.6   You confirm that You have the rights to grant permission for Us to access Your property to install, maintain, repair, adjust, add to and remove Our Equipment on Your property.

2.7   If We need access to install Our Equipment on someone else’s property You must first gain permission from the owner of the property. Comms West makes every effort to comply with UK planning guidelines, but if any specific regulations need to be complied with or any specific planning permission is   needed, it is Your responsibility to fulfil these obligations.

2.8   Before We can provide You with the Service, We need to successfully complete the following steps:

(a)     test the wireless Signal is strong enough for Our Equipment to receive the Service (where You are receiving wireless Service);

(b)     install the Equipment;

(c)     test the Equipment; and

(d)     activate the Service.

2.9   Comms West requires all subscribers to agree, when asked, to host a relay antenna (this being a second antenna which transmits the broadband signal onwards to other subscriber(s)). The cost of the electricity required to power the relay will be refunded at cost. There will be a duty on the subscriber to take all reasonable steps to prevent interruption to the operation of the relay through loss of electricity supply, blocking of lines of sight or other such         occurrence that could be within the subscriber’s control. In case of planned works which include a power interruption, 1 weeks’ notice should be given in   writing (by e-mail or letter to Comms West) in order to allow Us to warn other users of the interruption of the service. For unplanned interruptions, a phone call/ e-mail to the support team within the shortest time possible after the disruption will suffice.

3. Cooling Off Period

3.1   You have the right to cancel Your order by contacting Us within fourteen (14) days of Your order being placed or prior to the arranged installation date (the    “Cooling Off Period”).

3.2   We may deduct from any refund or make an additional charge for an amount for the supply of Your Service for the period for which it was supplied,       ending with the time when you told Us You had changed Your mind. We may also deduct from any refund or make an additional charge for an amount for any equipment installed and/or the cost of either a standard or a bespoke installation as in paragraph 2 of these Terms.

3.3   If You do cancel, You must return any Equipment provided to You (such as a router) within 14 days of cancellation. If You do not return the Equipment, You will have to pay the full Equipment price, excluding any discounts You have received (if You subsequently return the Equipment, We will refund any amount You have been charged for). We will advise how to return Equipment when You cancel, and You will be responsible for the cost of returning the Equipment. Any Equipment fixed to Your property will be removed by our engineer in accordance with clause 6.4 below.

3.4   For cancellations outside of the Cooling-Off Period stated in paragraph 3, please see paragraph 11 below.

4. Our Service

4.1   In exchange for paying the charges as set out in the Payment section below and complying with the terms and conditions of this Agreement We shall provide You with Our Service.

4.2   Comms West Ltd provides a broadband wireless and fibre (where available) local area network to provide Services covering the West side of Loch Linnhe, both sides of Loch Eil, Glenfinnan, and from Banavie to the wider Achnacarry/Bunarkaig/Clunes area, including Gairlochy and communities       along the A82 towards South Laggan to the North and Glencoe to the South, Tulloch, Fersit, Corrour.

4.3   Currently the minimum average speed for Comms West Ltd subscribers of wireless Services is 10mbps and maximum speed for Comms West Ltd   subscribers of wireless Services is between 30mbps and 60mbps (depending on the individual package). The minimum and maximum speeds for fibreoptic Services are dependent on the individual package. You should refer to Your Subscription Application Form and any other documentation provided by Us for further details of this. Comms West will use best endeavours to ensure the agreed minimum speed for all Services; however, this may be affected by location, weather conditions, atmospheric conditions, the age of customer devices used to connect, the number of devices connected at the same time, data transfer by other subscribers and total demand at any moment in time.

4.4   We may have to temporarily suspend the Service if either We, or Our service provider, need to carry out repairs, maintenance or upgrades to the Service or Signal. Before the Service is suspended, We will endeavour to give You as much notice as We can. We will make all efforts to restore the Service as soon as possible after operational work has completed. If We cannot restore the Service after seven (7) days, and that failure is not due to matters beyond Our reasonable control, You may terminate this Agreement without any additional charge on giving Us written notice in accordance with clause 11.2.

4.5   When providing the Service, We will use reasonable skill and care of a competent service provider. However, in supplying the Service We cannot     guarantee You a fault free performance or a constant connection to the Internet. Accordingly, We are not liable for any consequences arising from a         specific level of Service performance not being achieved or maintained, including but not limited to any of the following:

(a)     loss of Service through fluctuations in the quality and/or strength of the Signal;

(b)     loss of Service if Our service provider temporarily ceases to provide Us with a Signal;

(c)     reductions in the speed of the Service; or

(d)     suspension of the Service for operational reasons including but not limited to repairs, maintenance or upgrades.

4.6   We may have to alter technical specifications associated with the Service for operational reasons, and where We need to tell You about this, We will give you as much notice as We can.

4.7   Subscribers who experience faults or issues with their connection or Service should, in the first instance, follow the instructions in the Comms West Troubleshooting Guide available for download from the support page on Our website at https://commswest.co.uk

4.8   If a fault or issue still exists, You agree that You will notify Us of any defect in the operation or performance of the Service by email to [email protected] or by telephone on 01397 313013 (24 hour automated service). Comms West will respond at the earliest opportunity and, if necessary, a technician will visit the Property. In this event, should any fault prove to have arisen through actions/inactions on the part of the subscriber or other factors outside of Our control, Comms West reserves the right to apply a call out charge, at Our discretion.

4.9   Where a Service is VOIP compatible, You confirm Your understanding that the Service:

4.9.1. may sometimes be unavailable as a result of situations out with our control, for example, the weather, power disruptions, or failures of Your internet service provider (ISP) or broadband connection or, if provided by Us, Your Services and You understand that in such circumstances all services (including 999/112 public emergency call services) will also be unavailable;

4.9.2. may not provide Your phone number and location details to the operator of 999/112 public emergency call services if You make a public emergency services call. You may have to provide Your location information and phone number verbally to the operator;

4.9.3. where used outside of mainland Scotland, England, Wales and Northern Ireland, may not connect You to the domestic emergency services upon dialling the appropriate emergency number; and

4.9.4. may not offer all the features you may expect from a conventional phone line.

4.10 In the event of third-party failure meaning that We must close down Our network and cease to provide the Service We will use reasonable endeavours to deliver an alternative solution but, where no such solution is available, We will terminate this Agreement with 60 days’ notice. Termination under this      clause 4.10 will not result in additional charges payable by You under the Agreement once We have ceased to provide the Service.

4.11 You remain liable to pay all charges when You are unable to access the Service unless the reason You are unable to access the Service is wholly         attributable to Our negligence or wilful default or omission.

4.12 On expiry of the Minimum Term, the Agreement will renew for rolling successive periods of 30 days, each a “Renewal Period”. 30 days’ notice is      required to terminate the Agreement following the expiration of the Minimum Term.

5. Use of the Service

5.1   You must ensure that neither You nor any other person who has access to Your Service uses the Service to:

(a)     send or receive any material which is offensive, abusive, indecent, defamatory, obscene, menacing, fraudulent or illegal;

(b)     cause annoyance, inconvenience or needless anxiety in respect of any other person;

(c)     send or receive or publish any material which is illegal and/or grossly obscene (including without limitation child pornography);

(d)     spam or send unsolicited promotional material to any third party;

(e)     perform any illegal act or contravene any laws, licence or third party rights (including without limitation downloading material protected by any intellectual property right or hacking into secure web-sites without the consent of the owner);

(f)      re-sell, transfer, assign, or sub-licence the Service (or any part of it) to any third party; or

(g)     do anything which does not comply with Our Acceptable Use Policy which can be accessed via the Comms West website and which may be subject to change from time to time

5.2.  If We have reason to believe that You are using or permitting the Service to be used in a manner that is contrary to the ways listed above or any of Our   policies including our Acceptable Use Policy, We may immediately suspend You from the Service and/or terminate this Agreement. In such event You shall  not be entitled to a refund for loss of Service and shall only be re-connected once We are satisfied that You will not breach this Agreement again.

5.3   You agree to fully indemnify Us in respect of all damages, claims and losses which directly or indirectly arise as a result of Your misuse of the Services or failure to prevent misuse of the Services by others, or any other breach by You of Your obligations under this Agreement.

6. Equipment

6.1   Any Equipment owned by Us under this Agreement remains Our property and We retain title and ownership of the Equipment at all times except for any equipment that has been purchased by You from Us. Unless otherwise agreed in writing You may not sell or dispose of Our Equipment or do anything with it other than use it to receive the Service in accordance with this Agreement.

6.2   You agree that You will be responsible for care of the Equipment We provide You for the purpose of receiving the Service, whether or not that Equipment is attached to Your property. You agree to use the Equipment in accordance with any instructions, safety and security procedures applicable to it.

6.3   If You damage the Equipment in any way, We are entitled to charge You for the cost of such Equipment and/or to retain any money We hold to Your credit and use that money towards the cost of the Equipment.

6.4   Upon termination of this Agreement or indefinite suspension of the Service You must immediately return the Equipment. We shall notify You of the times Our engineer will be able to come to the property to remove the Equipment that is attached to Your property. You will agree with Us which of these times You will provide Us access to the Property, and You promise to ensure that a person over the age of eighteen (18) is present at the property during the removal.

7. Payment

7.1   A Subscription Application Form is required, and these Terms and Conditions agreed to before installation can take place. The invoice will be sent to You shortly after the installation has been completed together with instructions on how to set up Your Direct Debit mandate.

7.2   You will be responsible for paying the Monthly Payment Amount for the Service by Direct Debit. Accounts not settled by Direct Debit may incur a      processing fee.

7.3   We reserve the right to amend the charges or payment methods from time to time on giving You sixty (60) days’ notice in writing. If You are unhappy with the updated terms, You have the right of cancel, giving thirty (30) days’ notice.

7.4   The Monthly Payment amount is due on the day of the month specified on the Subscription Application Form or within thirty (30) days of invoice where payment is not made by direct debit.

8. Our Liability

8.1   The following provisions set out Our entire liability (including any liability for the acts and omissions of Our employees, agents or sub-contractors) to You in respect of:

(a)     any breach of Our contractual obligations arising under this Agreement; and

(b)     any representation, statement or tortuous act or omission including negligence arising under or in connection with this Agreement.

8.2   You agree that You are accepting these Terms and Conditions in the knowledge that Our liability is limited and that the prices and charges          payable by You have been calculated accordingly.

8.3   We do not exclude or limit Our liability to You for:

(a)     personal injury (including injury and death) resulting from Our acts or omissions to the extent that such injury results from the negligence or wilful default of Ourselves or Our agents working on Our behalf;

(b)     any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;

(c)     any breach of Our obligations under Part 1 of the Consumer Protection Act 1987; or

(d)     fraudulent misrepresentation.

8.4   You will not hold Us responsible in respect of any event for any consequential loss including but not limited to the following heads of loss:

(a) lost profit;

(b) lost business;

(c) lost opportunity;

(d) loss of goodwill;

(e) loss of reputation;

(f) loss of revenue or savings You expect to make;

(g) liability to third parties; or

(h) wasted expenditure or data being lost or corrupted.

8.5   We do not have any liability to You (including liability for negligence) for the acts or omissions of Our service provider or for faults or failures in their network or equipment.

8.6   We exclude all liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the Services, and We exclude all liability of any kind for the transmission, or the reception of, or the failure to transmit, or to receive any material of whatever nature via the         Service.

8.7   Subject to the limits set out in clause 8.4 above We shall accept liability to You in respect of any damage to Your tangible property resulting from the negligence of Us or Our employees or agents or sub-contractors.

8.8   Any liability We have to You of any sort is limited to the greater of 125% of either:

(a)     the charges paid by You for the Service in the twelve (12) months preceding the date on which the liability first arose; or

(b)     the charges We would have expected You to pay over a twelve (12) month period if You have not received the Services for a full year.

8.9   If the number of events gives rise to substantially the same loss, then they shall be regarded as giving rise to only one claim under this Agreement.

8.10 Except in the case of an event arising under clause 8.3 above We shall have no liability to You in respect of any event unless you serve Us with written notice of it within six (6) weeks of the date You become aware of the circumstances giving rise to the event or the date when You ought reasonably to have become so aware.

8.11 You acknowledge that the Service is not guaranteed to be fault free. When using the Service, you agree that you do so without any conditions, guarantees, warranties, whether express or implied including but not limited to any warranties or conditions as to satisfactory quality or fitness for a       particular purpose, which are expressly excluded to the maximum extent permitted by law.

8.12 Nothing in this Agreement shall affect Your statutory rights.

9. Suspension of the Services

9.1   We may immediately suspend the Service if We need to carry out maintenance, repairs or upgrade work pursuant to clause 4.4.

9.2. We may immediately suspend the Service if you commit any of the following acts:

(a)     You misuse the Service by committing any one of the acts listed in   clause 5.1 or any of the acts which are prohibited in Comms West’s Acceptable Use Policy;

(b)     You damage the Equipment;

(c)     You do not pay the charges for the Service when they are due; or

(d)     You breach this Agreement in any way.

10. Fair Use Policy

10.1 Your Service may be subject to a monthly download limit, which will be detailed in Your Subscription Application Form. Currently only Our basic       wireless package is subject to a monthly download limit as detailed on Our “Prices & Packages” page. If the Service is not subject to a monthly        download limit, it will still be subject to this Fair Use Policy.

10.2 As Comms West subscribers share a finite bandwidth, this Fair Use Policy is in force. Individual monthly download is monitored, and any subscriber who repeatedly downloads substantially more than average will firstly be asked to limit their use, but if they continue to download excessively their service may be suspended.

10.3 Our Acceptable Use & Privacy Policy should also be read by You in conjunction with this Fair Use Policy.

11. Termination

11.1 Within the (14) fourteen day Cooling Off Period, You may immediately terminate this Agreement provided that You pay the installation charge if the    Equipment has been successfully installed and an amount proportionate to any Service provided to You up until the cancellation date.

11.2 After the Cooling Off Period, this Agreement can be ended by:

(a)     either of us giving 30 (thirty) days written notice to the other (“Cancellation Period”) if no Minimum Term is in force; or

(b)     You giving us 30 (thirty) days written notice if under clause 7.3 We inform You We are increasing Our charges or changing the conditions of this Agreement and that this is likely to materially disadvantage You. Any increased charges will not apply during the 30 (thirty) day Cancellation Period.

11.3 We may terminate this Agreement or, at Our discretion, restrict or suspend some or all the Services with immediate effect, in the event that:

(a)     You breach this Agreement and such breach is either incapable of remedy or You fail to remedy the breach within a reasonable time of a written notice to do so; or

(b)     You do not pay Us, by the due date, any money You owe Us or You cancel the direct debit for Your Services without agreeing another form of payment with Us (although we will let you know by email to your registered email address before We do this); or

(c)     You misuse any of Our Services (see Acceptable Usage Policy);

(d)     the Service is suspended pursuant to clause 5.1 and 5.2.

11.4 Except as provided in clause 4.4, upon termination of this Agreement You shall continue to be liable to pay Us any outstanding charges for the Service including charges which fall due during any notice period You are required to give. All charges are non-refundable. We will be entitled to retain any money (including deposit monies and/or advance payments) held by Us, and to apply that money towards any obligation or debt, which You may owe to Us.

11.5 An early termination fee will be charged for each complete month remaining on the contract.

11.6 Comms West must be given the opportunity to remove the external Equipment from the property. This will be done with due care and consideration, but Comms West is not liable to carry out any reparations to reinstate the property to its pre-installed condition.

12. Variations to this Agreement

12.1 We reserve the right to vary the terms of this Agreement at any time and We will inform You of any such changes through e-mail, newsletter or such other medium, as We consider appropriate. We will give You at least thirty (30) days’ notice of any changes before they take effect. If We exercise any of Our rights under this condition and any such variation presents a material change, You can end this Agreement under clause 11.2, if You are a consumer or You are a micro-business as defined by Ofcom, You may end this Agreement under clause 11.2 unless any variations under this clause are for Your exclusive benefit.

13. Moving to another property

13.1 If you move from the Property at which We install the Equipment, and You wish to continue to receive the Service, We shall terminate Your Service and You will be required to register again for the Service at Your new property.   You agree to notify Us of any proposed move by giving Us thirty (30) days advance written notice.

14. Access to Your property

14.1 From time to time, We may need to access Your property to carry out inspection, maintenance checks, repairs or upgrades to the Equipment. We shall also need access to Your property to remove the Equipment upon termination of this Agreement.

14.2 We shall arrange a mutually agreeable time to visit Your property and will attempt to cause as little disturbance as possible when carrying out Our work. You also agree to give Our engineers permission to enter Your property upon their arrival as well as any assistance they may reasonably require during their visit.

15. Data Protection

15.1 We are registered in accordance with the United Kingdom Data Protection Act of 1998. We use industry standard procedures to protect Your personal information and keep it secure.

15.2 In order to operate and provide you with a Service, which includes functions such as back office billing, You agree to allow Us to pass Your personal     information to other parties. We undertake that this information will not be used for any commercial purposes such as direct mailing, mailing lists, or used to send you information unrelated to Our Service. We do not sell, trade or rent Your personal information to others.

15.3 Use of Your personal information will be in accordance with Our Privacy Policy (which can be accessed from Comms West’s website). Other than as   required by law, or as permitted under this Agreement, We shall not disclose Your personal information to any third party without Your permission.

15.4 From time to time We may, without notice to You, review or check Your use of the Service where We are required to do so to ensure compliance with any applicable laws, regulations, court orders, or requirements of any governmental, regulatory or supervisory body, and for Our own purposes including to ensure compliance with this Agreement.

16. General

16.1 Neither party will be liable to the other for delay or failure to perform its obligations under this Agreement by a matter which is beyond its reasonable control (including without limitation severe weather, storms, floods, strikes, industrial disputes, war, riot, malicious damage, compliance with any law or governmental order, rule, regulation or direction). If these matters continue for more than one (1) month either party shall be entitled to terminate this        Agreement.

16.2 Any notice, invoice or other document, which may be given by either party under this Agreement, shall be sent by email or prepaid first class post. Notices to Us shall be sent to Our office address (which can be accessed here or from Comms West’s website). Notices to You shall be sent to Your last known address. Correctly addressed notices sent by email will be deemed to be delivered immediately upon sending; and by post will be deemed delivered 48 hours after posting.

16.3 You may not assign, transfer, sub-contract, charge or licence this Agreement or any of its rights or obligations under it, without Our prior written consent. We reserve the right at any time to assign, transfer, charge, subcontract or otherwise transfer Our obligations under this Agreement or any of its rights under it.

16.4 This Agreement, and the documents referred to in it, constitute the entire agreement and understanding of the parties and supersede any previous   agreement between the parties relating to the subject matter of this Agreement.

16.5 Each of the parties acknowledges and agrees that in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any        statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. The only remedy available    to it for breach of any warranties shall be for breach of contract under the terms of this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.

16.6 If a Scottish court should find any provision of this Agreement to be invalid or unenforceable but would be valid or enforceable if some parts of the        provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable. Such          invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.

16.7 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party who is not party to this Agreement.

16.8 Failure by either party to enforce any of its rights under this Agreement shall not be taken as or deemed to be a waiver of that right.

16.9 Details of Our disputes and complaints resolution process and how to contact the Ombudsman Services can be found upon request by contacting our customer services.

16.10 The laws of Scotland shall govern this Agreement. Both parties submit to the exclusive jurisdiction of the Scottish courts. These terms and conditions were last updated on 28/03/2023 and replace all previous terms and conditions for Comms West Ltd.