|TERMS AND CONDITIONS for Breathe Internet||Broadband Pre 1st March 2014|
This web site and the associated connectivity services marketed within it are provided to you by Breathe Internet Limited (Registered Office: 3rd Floor, 207 Regent Street, London, W1B 3HH. Registered in England & Wales company number 06904784).
These Terms and Conditions apply to the usage of this web site, and any Internet Service that may be provided to you by Breathe Internet and replaces any previous agreement.
PLEASE READ THE TERMS AND CONDITIONS ON THIS PAGE CAREFULLY. By using this website, completing an order for a product, registering for a service or by using the Internet Services that we provide, you agree to be bound by these Terms and Conditions and any Acceptable Use Policy set out below.1. Definitions
In these terms and conditions the following words and expressions have the following meanings:
'Breathe Internet' or 'we' means Breathe Internet Limited.
'Internet Service' means the service provided by Breathe Internet whereby you may gain access to the Internet via a telecommunications network together with the services and facilities provided by Breathe Internet for you in connection with such service, as described in clause 3.
'You' and 'Your' means you, the person entering into this agreement with Breathe Internet.
'Internet Access Site' means the Internet (global data network) site provided by Breathe Internet, which can be found at www.breathe.com and www.breatheinternet.com.
'Content' means material provided at or through the Internet Access Site.
'Information System' means a system for generating, sending, receiving, storing or otherwise processing electronic communications.
'Acceptable Use Policy' means the rules defined below for usage which is permitted on this Internet Service.
'Designated Users' means any users using the Internet Service by or in connection with your account details.
'Agreement' means these Terms & Conditions.
Line Rental ("LR") means the rental payable for the hire of your fixed telephony cables to your property.
Call Service ("Call Service) means the useage of your telephone calls.
Broadband Internet Access ("Broadband Service")means the internet connectivity from your premises to us.
If you ordered any Service (as defined below) from us either over the internet, by telephone, by mail order or by any other distance selling method you may cancel the Contract (as defined below) pursuant to the Consumer Protection (Distance Selling) Regulations 2000 ("Regulations") at any time up to 7 working days either after receiving these terms and conditions for any Service or up to but not including, the date our supply of that Service to you commences if sooner ("Trial Period") provided that you notify us in writing of such cancellation within the Trial Period. If we have supplied you with any goods without charge (for example a wired modem) or if you have purchased any goods from us (such as a wireless router) that you wish to return for a refund, you must first call our Returns Department on 0871 424 0185 to obtain a Returns Authorisation Number (RAN).
You must then return the goods to us undamaged and in their original packaging, together with your RAN and proof of purchase, by sending them special delivery to Breathe Internet, 3rd Floor, 207 Regent Street, London, W1B 3HH.
We will issue you with a cheque refund within thirty (30) days of receiving any goods from you that you have purchased from us. This refund will only apply to the purchase price of the goods; we will not refund the cost of returning them to us unless they are faulty. For further details see clause 4 below.
You will be deemed to have received these terms and conditions 48 hours after they are posted to you.
Please note that if you do not return all the goods you have received, we shall be entitled to charge you for the costs we incur in collecting them from you. These terms and conditions do not affect your rights under law.
If you require any advice or assistance we would suggest you contact your local branch of the Citizens' Advice Bureau, which should be able to help.
Your Personal Information
We will respect your personal information and undertake to comply with all applicable UK data protection legislation in force from time to time, both in respect of the personal information supplied by you on registration and in respect of any such personal information which we may process.
In relation to the personal information provided by you on registration (your registration details), you agree that we may use such information in accordance with the purposes for which your permission has been obtained on registration.
We may share your information with any other Breathe Internet Limited group company, and any other company who reasonably requires the information for the purposes of providing the Internet Service.
We may also use any personal information for marketing, statistical analysis, customer surveys and / or to provide details to you of products and / or services in which we believe you may be interested. We may also pass your details to third parties to contact you with information about products and / or services and those third parties may be based outside the European Economic Area.
1.1 The Services are for home use only and not for business.
1.2 To place any Order you must be at least eighteen (18) years old and you agree that the details that you provide to us on your Order shall be true, accurate and complete.
1.3 Our Service(s) may not be available to a small number of customers in certain circumstances. We will tell you if this applies to you.
1.4 The Services, for which you enter a Contract, will start on the Commencement Date and will continue until terminated in accordance with clause 7 of these Conditions. Your Contract may also be subject to a Minimum Period, but we will tell you what this is before you sign up.
1.5 Other than a Modem, (which we may sell or provide to Customers of our Broadband Service under clause 4.5) we do not provide you with any equipment (such as a telephone). We are not responsible for any problems you may have with equipment which we do not provide.
1.6 You agree not to connect equipment to our network that may harm it or other customers' equipment. If you do, you must disconnect it immediately, or allow us to do so at your expense.
1.7 We will email you a bill, which you must pay on time. We may send you separate bills if you take more than one Service from us.
1.8 Please note that you cannot change your billing email address online and to make this change you will have to phone Customer Services or write to us at the address listed above.
1.9 When we provide you with a Service, we will use the reasonable skill and care of a competent service provider, but we cannot guarantee that the Service will never be faulty. This is because the Networks, which allow you to access the Services may be provided by other third party companies over which we do not have control.
Your Telephone Number
1.10 You accept that you do not own any telephone number we make available to you under your Contract. You agree not to transfer the number to anyone else or to try to do so. You accept that we may have to change your telephone number. We will try and do so only when it is reasonably necessary or if we are requested to do so by Ofcom or another similar regulator. We will tell you before we change your number. You may request us to 'port' your number from another communications provider and we will try to do this wherever it is reasonably practicable.
However you accept that this may not always be possible. In these circumstances we may have to provide you with a new number. If you have any questions in this regard please call Customer Services.
Ending a Particular Service or Changing a Tariff
1.11 You accept that the price that we charge for a bundle of products may be lower compared to prices of the individual products in the bundle taken together. If you take a bundle of Services, but later choose to take one or more of the Services from another telephone provider, you accept that we may charge for the remaining Services at their stand-alone price.
1.12 Please note that, if you make calls over another operator's Network using an override code these calls may be charged at a higher rate than your normal FreeCalls Direct rates.
Transferring a Service
1.13 We will try to give you the same set of services that you received from your previous telephone provider. However you accept that this may not be possible in some limited circumstances. Furthermore, since the services will not be automatically retained on transfer to FreeCalls Direct, we can only provide you with Services, which you specifically selected when signing up to us.
1.14 If, immediately prior to receiving the Services from us, you were a customer of BT, some calls (such as subscriber or premium rate services) that appear on your FreeCalls Direct bill may involve additional call charges. We will charge you for these at our rates as set out in our list of Charges (as amended from time to time).
1.15 You may have existing contracts for telecommunications services (i.e. line rental, or calls, or broadband) with your old service providers, which have minimum service periods in them. You are responsible for checking any such contracts and for paying for any ongoing charges or charges on termination you may have to pay to your old service provider. These will be in addition to our charges.
1.16 If you move house and want to access the Services at your new address you may need to set up new accounts for that location by calling Customer Services. You will have to provide us with what we regard as suitable proof of your new address if you wish to receive the LR Service or the Broadband Service. We will follow good industry practice in deciding what proofs of address are required. If you do not provide this information we will not be able to terminate your existing account and you will be liable for any charges that remain due in respect of the remainder of the term for the particular Service (for example, the remainder of the Minimum Period for the Broadband Service).
FreeCalls Direct Privacy
1.17 If you have given us your permission, we will register your telephone number for 'FreeCalls Direct Privacy' using the Telephone Preference Service ("TPS") registry. The TPS is independent of FreeCalls Direct and is a central register of individuals who have indicated that they do not wish to receive unsolicited sales and marketing calls. Registering your telephone number on the TPS will stop telemarketing calls from all other companies in the UK, including those who regard you as a customer unless you have previously told them you have no objection to them calling you.
Codes of Practice
1.18 We seek to provide our Services in accordance with our consumer code of practice. The code is available on www.breathe.com or by calling Customer Services.
1.19 When you connect to our Network you will usually be charged a connection fee ("Connection Fee"). This Connection Fee is levied in addition to any other Charges, which may be due under any other term of these Conditions and it arises primarily from charges which BT levy on us. Accordingly, we reserve the right to pass on some or all of these charges to you and if appropriate to charge you for any additional related expenses we may incur in relation to your connection. The Connection Fee will usually be charged at the point of connection to the relevant Service. The Connection Fee will be charged in accordance with our price list as published on our Website on the day you order the Services.
General LLU Provisions
1.20 Developments in Network technology (known as Local Loop Unbundling or "LLU") may enable us to provide fixed line Services to you through our own Network rather than a third party Network. We will let you know when these developments occur. If you have previously agreed to take our LR service we may transfer you to our LLU network but we will still offer the same Services to you as those which you received from us before the transfer.
1.21 On the day that we transfer you to our LLU network, you may experience a temporary loss of Service of up to 24 hours. Afterwards, you may also have to re-set your access numbers and/or passwords.
1.22 Unless you have agreed previously to take our Broadband Service, we will seek your express consent before transferring you to our LLU network if you take a broadband service from another provider on the same telephone line at the time of transfer.
1.23 When you have been transferred to our LLU network, you need to be aware that:
1.23.1 you may no longer be able to use some telecommunications services you purchase from other telephone providers, such as indirect access services (whether using the BT 1280 or other indirect access codes);
1.23.2 you will no longer be able to use Broadband or Line Rental Services from other providers. We will not be liable for any charges which may arise as a result of the termination of your contract with your existing providers for those services;
1.23.3 if you want to switch one or more of your services to another telephone provider, we may have to provide your remaining Service(s) through another Network. You accept that you may have to pay additional charges for receiving Services from us in that case.
2. Specific Provisions Relating to the LR Service
2.1 If you take our LR Service you must also take our Call Service. Your contract for our LR and Call Service will not include: telephone or other equipment (other than line rental); internet access; or calls via any mobile services which we may provide.
2.2 If we do not provide your LR Service over our LLU network you may use another provider for broadband services but you will need to continue paying them in order to receive that particular service.
Specific Provisions for LR and LLU
2.3 If you are a Customer of the LR Service only you are not eligible to:
2.3.1 participate in the 'calling circle' promotion;
2.3.2 receive "Inclusive Calls to FreeCalls Direct Customers" (referred to in clause 3.4 below); or
2.3.3 take advantage of any other offers made available by us from time to time.
2.4 At an additional cost, we can provide you with the following optional LR select services:
2.4.2 voicemail plus;
2.4.3 call waiting;
2.4.4 ring back;
2.4.5 call divert;
2.4.6 withhold number on all calls;
2.4.7 anonymous caller reject;
2.4.8 last caller barring; and
2.4.9 caller display.
2.5 Please note you can only change your select service options once in any given month. We will make any requested change to your service with effect from the following month.
2.6 If you are moving home, we will do our best to arrange the transfer of your line whilst retaining your existing telephone number. However, you accept that we may not always be able to do so and we are not liable to you if we cannot.
2.7 You accept that if you move house and wish to continue to receive the Services at your new address you may incur a Homemover Fee and a new Minimum Period will begin.
2.8 If you have been allocated or have chosen to obtain a new number, you accept that we may bill you for your calls at a higher rate than normal until our Call Service has been activated on your line.
Faults and Repairs
2.9 If there is a fault with your Service, you should contact Customer Services. In accordance with industry practise we will try and repair a service failure by midnight on the second weekday (not including public and bank holidays) after the day you report the fault to us.
2.10 You may also be able to claim compensation if we fail to repair your Service or if we fail to respond to a fault when we said we would. Please contact Customer Services or visit our Website for further information on reporting a fault and details of our compensation policy. If your compensation claim is successful, the amount you receive will be credited to a later invoice. The maximum compensation claimable is £200.00 per line per annum.
2.11 Please note, you cannot claim compensation if:
2.11.1 you don't qualify under the terms of our compensation policy;
2.11.2 you have not made your claim within one (1) month from when we put things right;
2.11.3 someone other than FreeCalls Direct has caused the fault;
2.11.4 the fault was caused by something outside FreeCalls Direct's control, e.g. network or atmospheric conditions;
2.11.5 we ask to come onto your property and you do not allow us to;
2.11.6 we reasonably ask you for other help and you do not give it; or
2.11.7 your Service(s) haven't been fully installed and activated at your address (whether you're a new customer or are moving house and taking your service with you).
2.12 If you have agreed to a visit from our engineer but the engineer is not able to come onto your property, we will charge you an abortive visit charge.
2.13 We can also charge you for any such engineer visit if we reasonably believe that you have caused the fault by damaging the phone line or phone plug in your wall.
2.14 If you are a Call Service Customer and / or an LR Service Customer and elect to use another provider for some or all of your calls we may, at our sole discretion, decide to: (i) bar your use of IDA codes; (ii) charge you a higher fee for your use of the Call Service and / or LR Service; or (iii) disconnect your Call Service and / or LR Service (or Broadband Service if applicable).
2.15 If we provide the Services to you over our LLU Network, we may also charge you a higher fee for your Broadband Service.
3. Specific Provisions Relating to the Call Service
3.1 Your contract for the Call Service does not include line rental, mobile phone service or broadband. You will need to continue paying your existing providers for those services.
3.2 If your telephone line is faulty and you do not take our LR Service, you will need to contact your Line Rental Provider (usually BT) to repair and maintain the line and/or connection in accordance with the terms and conditions of your agreement with them. We are not responsible for any charges you may incur as a result.
3.3 Calls to the Channel Islands and the Isle of Man are not automatically included in your Tariff Plan or in any promotion offered by FreeCalls Direct.
Inclusive Calls to FreeCalls Direct Customers
3.4 If your Tariff Plan includes Inclusive Calls to FreeCalls Direct Customers, you will not be charged for the first 60 minutes of each call. Thereafter, the standard Charges relevant to your Tariff Plan will apply for all minutes in excess of 60 minutes. Inclusive Calls to FreeCalls Direct Customers are available on the following conditions:
3.4.1 the calls must be made for normal residential use and not for business purposes. You must also use FreeCalls Direct as your only call provider;
3.4.2 you must call a number belonging to an active FreeCalls Direct customer;
3.4.3 you must call a number starting with 01, 02 or 03; and
3.4.4 you cannot use a call divert facility.
3.5 You accept that we can withdraw your ability to make Inclusive Calls to FreeCalls Direct Customers at any time at our sole discretion. We will try and give you 30 days notice if we believe that our Inclusive Calls to FreeCalls Direct Customers offer is damaging our business. However we do not have to give you any notice if we believe you are in breach of these Conditions or that your use may cause degradation of service levels to other FreeCalls Direct customers.
3.6 IDA service customers (whether under the "FreeCalls Direct" brand or otherwise) are excluded from participating in Inclusive Calls to FreeCalls Direct Customers.
3.7 If your Call Service Tariff Plan allows you to call to customers on other Networks for a fixed fee, these calls will be subject to certain limitations. If any such call (whether national or international) lasts for longer than sixty (60) minutes you will be charged for any minutes, which are in excess of this time. If you wish to avoid these charges you can replace the handset and re-dial before the seventy (60) minute threshold is reached. If your Call Service Tariff Plan includes "Local Calls" these are calls made to other landline numbers in your local area and adjacent codes. If your Tariff Plan includes "National Calls" these are calls to landline numbers in the UK that start with 01, 02, 03, 0870 or 0845 (excludes calls to Channel Islands).
3.8 If you move house, your Call Service should continue uninterrupted. However, you accept that there may be interruptions to your service in some circumstances. For instance this may be the case if your telephone number changes or if you move out of an area covered by our LLU Network.
3.9 If you move house and wish to continue to take the Call Service you may have to pay a Homemover Fee.
3.10 You may be able to make international calls using our International Access service. This allows you to make cheaper international calls by first dialling an Access Code. Your phone line may be barred for international destinations in which case you must first call our Customer Services before you can make any international calls.
3.11 You accept that you may not always get through to all international destinations and that we may also require you to pay a deposit or impose a Credit Limit before we allow you to use International Access. Even if we have imposed a Credit Limit, you will be responsible for any call charges you incur in excess of that limit because of delays in our billing system.
3.12 You accept that you will need to pay higher charges for international calls that you make without using the Access Code.
3.13 Unless we tell you, our other promotional offers do not apply to International Access.
4. Specific Provisions Relating to the Broadband Service
4.1 The Broadband Service is available as a separate Service and does not include fixed line or mobile calls or line rental. If you use another provider for these services, you must continue paying the other provider.
4.2 In order to provide you with the Broadband Service, we need to test your telephone line to ensure that broadband is available in your area. You are responsible for paying for any work that needs to be carried out on your telephone line in order to receive broadband.
4.3 When we activate your Broadband Service you accept that there may be a temporary loss of your line.
4.4 To be able to receive and use the Broadband Service you will need an existing telephone line and a personal computer ("PC") of minimum specification. Please speak to Customer Services for further details of the minimum PC specification that is required. You will also need compatible cables and extension leads between your PC, Modem and telephone socket. You accept you may need to modify your PC slightly to make it operate with the Broadband Service. It is your responsibility to ensure that such modifications do not invalidate the terms of any warranty that you may have concerning your PC. We will not be liable if any such warranty has been invalidated as a result of work carried out by you, us or our agents (including BT) to make your PC operate with the Broadband Service, except in the event of our negligence.
4.5 If when you order our Broadband Service you purchase a Modem (for example a wireless router) from us or we otherwise agree to supply one to you without charge (for example a wired modem) with our Broadband Service, we will try and make sure that the Modem is delivered to your home before the Broadband Service is activated. However we cannot guarantee that you will receive the Modem in time. Please note, for environmental reasons, any Modem that we agree to supply without charge may be a Modem in 'as new' condition. This will be a Modem that has been refurbished and/or repackaged, but it will look and operate in exactly the same way as a new Modem.
4.6 You must inspect the Modem as soon as you receive it and tell us of any damaged or missing items within seven (7) days by calling Customer Services. We will then send you a new Modem, but if we do this you must also return the faulty one to us in accordance with clause 4.7 below. We will also repair or replace the Modem if it becomes faulty during the first eighteen (18) months after we supply it to you, but we will not replace any faulty Modem if you are responsible for the fault (including without limitation as a result of your failure to follow the manufacturer's instructions or your mis-use or alteration of the Modem without our approval). In that case you must pay for a new Modem in order to receive the Broadband Service.
4.7 If we send a replacement Modem, you must return to us the faulty Modem (including all cables and software that came with it) within thirty (30) days of receipt of the replacement Modem. You accept that we will charge you for the replacement Modem if you do not return the faulty Modem (including all cables and software that came with it). We will accept proof of postage as proof that you have sent us the faulty Modem. You must keep the original box and packaging for the Modem in good condition and ensure that the Modem is stored in accordance with the manufacturer's recommendations. We will refund the reasonable cost of returning the faulty Modem to us by post. At your request we will send you a pre-paid returns envelope to return a faulty Modem to us.
4.8 If you wish to use a modem or any other equipment that we have not supplied, we will try and help you as far as we can. However we cannot guarantee that the Broadband Service will work with that modem or equipment.
4.9 If prior to the Commencement Date you cancel your Order for our Broadband Service in accordance with the Consumer Protection (Distance Selling) Regulations 2000 and we have supplied you with a Modem without charge, or if at any time your purchase a Modem from us over the phone or from our Website and in accordance with the same regulations you cancel your contract for the purchase of that Modem by giving us notice within the period of seven working days starting from the day after you receive the Modem from us, you must: (i) first obtain a Return Authorisation Number from Breathe by calling our Returns Department on 0871 4240185 ; and (ii) return the Modem to us undamaged and in its original packaging, together with your RAN and proof of purchase, by sending it special delivery to Breathe Returns, 3rd Floor, 207 Regent Street, London, W1B 3HH. If you have purchased the Modem from us, we will issue you with a cheque refund within thirty (30) days of receiving the returned Modem from you. This refund will only apply to the purchase price of the Modem; we will not refund the cost of returning it to us unless it is faulty.
4.10 If you return the Modem to us in accordance with clauses 4.7 or 4.9 and have either failed to take reasonable care of the Modem while it remained in your possession or you fail to return all the relevant cables and appropriate ancillary equipment or software supplied to you with the Modem, we shall be entitled to debit your account (using the details that you provided to us with your Order) for the full replacement cost of such Modem. To take reasonable care of the Modem you shall retain and keep the original box and packaging for the Modem in good condition and shall ensure that the Modem is stored in accordance with the manufacturer's recommendations.
4.11 In order to connect to the Broadband Service, we may require you to install certain software on your PC. If you do not to install this software, we may not be able to resolve any installation and/or connection problems you may experience. In addition, we are not responsible to you for any matter that may arise as a result of your failure to do so. By installing this software you also allow us access to your PC so that we can diagnose and fix any problems. You accept that we will be able to access your PC in this way.
4.12 Before you install the software supplied with the Modem and before you connect the Modem to your PC, you should back up or save any data on your PC. We are not responsible to you if you lose any data.
4.13 We will try to give you the 'download' Transmission Speed that you have signed up for but we cannot guarantee that you will always be able to get these Transmission Speeds. If we cannot provide you with the Transmission Speed you have signed up for, we will give you the next available lower Transmission Speed. The Transmission Speed may also change if you move house because they are dependent on your proximity to your local telephone exchange. You accept that 'upload' speeds will always be slower than 'download' speeds. We will provide you with further details of these upon request.
4.14 If you have any queries regarding your Broadband Service or want to report a fault, you need to contact our Customer Services. In addition, we will operate a Technical Support Helpline to provide information and advice to you on any technical issues relating to your use of the Broadband Services. Calls to Customer Services and the Technical Support Helpline will be charged at the prevailing rates set out on our Website.
Allocation and use of e-mail addresses and mailbox/storage
4.15 We will give you a username and password in order to access the Broadband Service. You will be responsible for keeping this username and password confidential and agree to take all necessary steps to ensure their confidentiality and that they are not disclosed to any unauthorised third parties. You will inform us if you become aware of or suspect any unauthorised use of your username and password and agree to take all necessary steps (or such steps as may be requested by us) to prevent such use.
4.16 You accept that you do not own any e-mail addresses that we have given to you. You also accept there may be good reasons why sometimes we may need to change the e-mail addresses.
4.17 To prevent 'spam' from affecting the operation of our systems and the Broadband Service, we may need to block access to or delivery of any e-mail which appears to be of an unsolicited nature and/or part of a bulk e-mail transmission. We may also use virus screening technology that may result in the deletion or alteration of e-mail and or e-mail attachments. We expect this software to be fully effective but we cannot guarantee that it will always protect you from unsolicited emails or any virus, worm, Trojan horse or similar. We therefore recommend that you install your own anti virus software.
4.18 Where we provide you with email facilities, web hosting or other services that involve us providing storage space on our systems, we may impose limits (which we may vary from time to time) on the storage space we provide to you in order to ensure the quality of the service to you and other users. These limits may relate to the physical amount of webspace or the number of mailboxes made available to you, email messages that can be stored and/or the size of any attachments you can send. We may reject or delete material that exceeds the relevant limit. We may also: (a) block receipt of emails to; and/or (b) archive or delete emails and/or attachments from, mailbox accounts which have not been used by you for a reasonable period of time.
4.19 It is your responsibility to make sure that the Broadband Service does not affect any alarm system in your home.
Transferring or Terminating your Broadband Service
4.20 You may need to obtain a Migration Authorisation Code ("MAC") from your current broadband provider in order to move to our Broadband Service. This MAC will be valid only for a limited period and can only be used once. You accept that we may charge you if you are moving your broadband from another provider to us. For further details about MAC's or of these charges please call Customer Services or visit our Website.
4.21 If you terminate your Broadband Service prior to the end of the Minimum Period you must pay us the amount set out in clause 7 below. The same applies if your telephone line is disconnected for any other reason such that we can no longer provide you with our Broadband Service.
5.1 Nothing in these terms shall exclude or limit our liability for death or personal injury caused by our negligence or that of our agents, or for any liability arising under Part I of the Consumer Protection Act 1987.
5.2 We shall not be liable for any loss that is not reasonably foreseeable nor for any loss calculated by reference to profits, income, or business or loss of such profits, income, or business or for any loss of data or goodwill.
5.3 In transferring you onto our Services and in providing the Services to you thereafter, we have to rely on other Network Operators and other providers of telecommunications services. Accordingly, we do not accept liability for the acts or omissions of Network Operators or other providers of telecommunication services.
5.4 Our aggregate liability, whether in contract or for negligence or breach of statutory duty or otherwise, to you for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed £2,000 for any one incident or series of related incidents.
5.5 The limitations of liability set out in this clause 5, are in addition to any other provisions limiting our liability set out elsewhere in these Conditions.
5.6 Nothing in these Conditions shall impose any liability on us in respect of non-performance of the Service where the performance claimed is outside the terms of your Contract or where such non-performance is directly due to your acts, omissions, negligence or default.
5.7 The Broadband Service allows you to access the internet and you agree that your use of the internet through the Broadband Service is at your own risk and subject to all applicable laws. We recommend that you install security software on your PC before accessing the internet. We may offer you anti virus software or other security features as part of your Tariff Plan or as an additional service. Where such anti virus software or other security features are in addition to the standard features of your Tariff Plan we shall be entitled to charge you for its use. We expect any anti virus software of other security features which we provide to you to be effective but we can not guarantee that it will protect your PC from all harmful or malicious traffic disseminated on the internet. We shall not be liable for any loss or corruption of data or any losses you may suffer arising from your use of (or failure to use) any anti virus software or other security features. You agree that it is your responsibility to protect your PC against viruses and to back up all data to protect against loss or corruption of such data. We shall have no responsibility for any goods, services, information, software or other materials that you use or obtain when using your PC whether offline or online for accessing the internet (including e-mail)
5.8 We do not warrant or guarantee the accuracy or completeness of any Content provided with the Broadband Service, including without limitation, any information, sound, data, software or other materials (in whatever form). You agree that any use that you make of any such Content is at your sole risk and is subject to any third party terms and conditions applicable to that Content.
5.9 Although alarm signals can be carried across a Network, we are not responsible for lack of service or failure to deliver an alarm signal due to:
5.9.1 your use of the Services;
5.9.2 a Network going down;
5.9.3 suspension of your account under clause 7;
5.9.4 failure arising from any misuse of the phone line or telephone equipment;
5.9.5 your telephone line being migrated to our LLU Network pursuant to clause 1.20; or
5.9.6 for reasons outside our control (including, without limitation, if there is a technical failure of a Network, because a Network is being tested, modified or maintained or if access to any Network is denied to us).
6. Charges and Payment
6.1 Our Charges for providing the Services shall be effective from the Commencement Date applicable for each Service and will be calculated in accordance with your Tariff Plan.
6.2 You must pay all the Charges incurred by you, or any person using any Service, even when such Charges exceed any Credit Limit imposed upon your account.
6.3 Within thirty (30) days of the Commencement Date, we shall prepare and send to you a bill for the Services you have used. Thereafter we shall prepare and send to you a bill at the end of every Billing Period.
6.4 You may choose to receive your bills in paper or electronic form (including accessing your bills online). If you choose to receive your bill in paper format we reserve the right to charge you an additional amount for providing you with this service.
6.5 The LR Service, the Broadband Service (if applicable) and certain charges for the Call Service will be billed monthly in advance. Monthly charges incurred for periods of less than one month will be calculated on a pro rata basis. Calls made using any Service will be billed in arrear.
6.6 All bills shall be payable within fourteen (14) days of receipt and shall be paid by way of credit / debit card to Breathe or such other entity as we shall notify you from time to time. Unless we expressly agree otherwise any and all Charges are exclusive of VAT.
6.7 We may charge you interest both before and after judgement at a rate equal to the greater of 2% above base rate from time to time of Barclays Bank plc or the statutory minimum allowable on the late payment of our bill. Interest is charged on a per annum basis, calculated daily.
6.8 Where you have entered a Contract to receive any Service from us, your account is limited in any one month to an amount which may either have been set at the time of your application or at any time thereafter while you have a Contract with us ("Credit Limit"). This Credit Limit is subject to the following provisions:
6.9 we may, depending on your payment history with us, lower your Credit Limit. On request we may agree to raise your Credit Limit. If you wish to vary your Credit Limit you should telephone Customer Services;
6.10 as our billing system is not instantly updated each time you make a call, it is possible to exceed your Credit Limit. The Credit Limit does not act as a bar and you may be able to incur Charges that result in you exceeding your Credit Limit. You will be liable for all Charges, including any in excess of your Credit Limit. You will be asked to pay any Charges in excess of your Credit Limit before Services are reinstated; and
6.11 we may suspend your service if your Credit Limit is exceeded and if you exceed your Credit Limit in respect of the Call Service all of your outgoing calls may be diverted to our Customer Services department.
6.12 In addition to setting a Credit Limit, we may ask you to pay a non-interest bearing deposit which we will be able, at any time, to use to pay off any Charges you owe. Any such deposit will be reasonable and will be assessed in the light of your previous FreeCalls Direct bills and credit history. At any time, you may ask for a refund of your deposit but this may result in us reducing your Credit Limit.
6.13 Charges for calls you make using any Service will be calculated using details logged and recorded by us. Calls are charged based on the rate applicable when the call was initiated. Calls will be charged and inclusive allowances deducted in one minute increments (with any part minutes rounded up to the nearest minute) individual charges will then be rounded up to the nearest whole penny. In addition, and notwithstanding the preceding sentence, there is a per call connection charge and the details of these call connection charges appear in our price list which is available on our Website. The call connection charges will include without limitation, any calls made as part of a 'calling circle'.
6.14 You should also be aware that we may allocate Call Data Records ("CDR's") which have been received late, whether from other Network Operators or otherwise, into the bill for your current Billing Period. Further details of late arriving CDR's are available from Customer Services.
6.15 If your Tariff Plan includes 'inclusive' minutes, which apply to all call types up to a monthly limit, unused inclusive call minutes cannot be carried forward from one month to the next. In this context "monthly" or "month" means your monthly Billing Period, which may not equate to a calendar month.
6.16 Upon termination of any Service for whatever reason all sums outstanding and any cancellation Charges arising as a result shall be treated as a debt and shall become immediately due and payable. For clarity, this includes any charge that we incur from a third party for disconnecting you from a Service.
7. Ending Your Contract
7.1 If you no longer want to receive one or several of our Services, you must tell us a certain number of days in advance. How many days will depend on which Service(s) you currently take from us. If you receive more than one service (for instance Calls and Broadband), you must also tell us which Services you no longer want.
7.2 Some of our Services have a Minimum Period. This means that you are legally obliged to keep receiving our Service until the end of that term. If you leave before the end of the Minimum Period, you accept that you have to pay us an additional charge. Please see clause 7.7 about this charge.
7.3 For the LR Service and the Broadband Service, unless we otherwise tell you, the Minimum Period is 12 months. We will tell you when you sign up if that applies to you. Please see the definition of Minimum Period if you would like more information.
Termination by You
7.4 If you wish to cancel a Service, the following will apply:
7.4.1 to end the Call Service, you must tell us in writing 15 days in advance of leaving us.
7.4.2 to end the Broadband Service, you must tell us in writing 30 days in advance of leaving us;
7.4.4 to end the LR Service, you must tell us in writing 30 days in advance of leaving us. However, if you are leaving us to go to another telephone company, we will consider that you have given appropriate notice as soon as when we receive notice from your new provider. In other words, you will not be required to give us 30 days written notice in this instance.
7.5 If you wish to end this Contract, you must either call Customer Services, email us via My Account or write to us at Breathe Internet Limited, 3rd Floor, 207 Regent Street, London, W1B 3HH stating your name, address and FreeCalls Direct CPS Telephone number. Any legal proceedings that may be issued by you can only be served by sending them to: The Company Secretary at the address above.
Termination by Us
7.6 If we wish to cancel a Service, the following will apply:
7.6.1 to end the Call Service, we can stop supplying you with our Service if we tell you in writing 7 days in advance.
7.6.2 to end the LR Service or the Broadband Service, we can stop supplying you with our Service if we tell you in writing 30 days in advance.
Payments Due on Termination
7.7 If your Contract has a Minimum Period and you terminate the Service before the end of that Minimum Period you must pay us, as compensation for our losses an early termination charge of £55.00 plus the amount equivalent to the number of months remaining of your Minimum Period. If, after the end of your Mimimum Period, you request a cease of your service or we receive notification that the PSTN line has been ceased then a cease charge of £25.00 will be debited from your account.
7.8 We will not charge you anything if you cancel your LR or Call Service within 10 working days from the date on which you agreed to take those services except the New Line Fee if you have had a new line to your home installed by us in that time.
7.9 If you have had a new line to your home installed by us and you then cancel your contract with us before you have paid the New Line Fee or the Homemover Fee, you accept that you must pay us the New Line Fee or the Homemover Fee in addition to any other charges you may be liable to pay to us for any products or services we may have provided to you before you cancelled your contract. This does not affect your statutory rights.
7.10 If you wish to cancel an Order before the Commencement Date, you also accept that we may charge you a disconnection fee for any work that may have been done at your local exchange.
Other instances when we can end your Contract
7.11 If you cancel or terminate any Service or change Tariff Plan you accept that we can cancel any other Service that we supply to you by giving you thirty (30) days' notice.
7.12 If you breach your Contract, and we ignore your breach, or if the Service is suspended, we can still end your Contract if you breach it again or if the Service is suspended.
7.13 If at any time BT ceases to provide services to us such that we are unable to continue to provide any of the Services, to you, we may immediately terminate our Contract with you.
7.14 We may terminate your Contract by giving you notice in writing, if: you are in material breach of these Conditions or you give us false credit information; or you are or become bankrupt or enter in to an IVA or similar creditors' agreement.
7.15 If we end your Contract for Call Services under this clause 7, and you are not on our LLU Network, you accept that we can transfer your service either to BT, or back to your original provider without your consent.
7.16 If you end your Service with us, you will be responsible for transferring to another service provider. If you do not do this, you may be left without any telecommunications service.
7.17 If you have accepted any Service on the basis of it being offered by us 'forever', you acknowledge and accept that this can only apply providing that you stay as a Customer and we continue to offer the Service on our Network.
7.18 If at any time either you or us end your Service with us for any reason and you have made any cash, debit or credit card payments in advance for that Service or paid any deposit under clause 6.12, we shall only refund the excess of such payments that remains after settlement of all charges on your FreeCalls Direct account. If we have awarded you any goodwill credits during your Contract, we shall apply those first to any outstanding charges on your account before we send your final bill. However, if your Service is cancelled by you or us and any goodwill credits or any part of them remain after we have accounted for all outstanding charges on your account for that Service, those credits will be cancelled when your Service ends and you will not be paid or be entitled to claim the cash value of any such credits, or to otherwise redeem them or transfer them to any other FreeCalls Direct account holder or to any third party.
8. Use of Your Information
8.1 We respect your personal information and undertake to comply with applicable Data Protection legislation in place from time to time. We may hold information that you provide to us (such as by telephone on an application or Order form or registration form) or that we may obtain from another source (such as our suppliers, marketing organisations or credit reference agencies). This information ("Your Information") may include your name, address, date of birth, gender, telephone numbers, email address, bank and Credit or Debit Card information, occupation and employment data, lifestyle information and details of how you use the Services, which may include for example and without limitation, the Call Services including, without limitation, the numbers you call, the type, date, time, location, duration, and cost of calls, messages or other communications, the addresses you send messages to, or your use of the Broadband Service, such as how long you are on-line, your browsing activities and other general information about the way you pay and manage your account.
8.2 We may share Your Information with: companies within the Breathe Group and any company or other entity in which Breathe Group owns (directly or indirectly) more than 15% of the issued share capital for the purposes described in these Conditions including, without limitation, its insurance companies); and, in the event that we undergo a re-organisation or are sold to a third party, you agree that Your Information may be transferred to that re-organised entity or third party for the purposes and subject to the terms of these Conditions.
9 The Information Commissioner
9.1 A comprehensive description of how we use personal information is publicly available from the Information Commissioner - please see: www.dataprotection.gov.uk.
9.2 If you would like us to tell you what information we hold about you, please write to us c/o The Data Protection Office, Breathe Internet Limited. We may charge a £10.00 administration fee; please quote your full name, address, fixed line number (as appropriate) and account number on all requests. You can also call Customer Services to correct or update any inaccurate or incomplete information and to advise us of any preferences you may have concerning how you can be contacted for marketing purposes or to indicate your preferences for directory entries.
9.3 If you do not wish your details to be used for the purposes described in clauses 8.1 and 8.2 please write to us at the above address stating your full name, address, account number and phone number. Please note: this will not affect any marketing consent which you have already given to any of the companies referred to in this clause in respect of agreements relating to other products and/or services.
9.4 If you provide us with any information about any other individual, such as another user of our services, it is your responsibility to ensure that that other individual consents to, and is made aware of, the use of their information by us for the purposes set out in this clause.
9.5 Subject to your rights of objection set out in this clause, and your right of objection in the registration process, you agree that you consent to us, Breathe or third parties contacting you for any of the above purposes whether by telephone, email, MMS, SMS or in writing and you confirm that you do not consider any of the above as being a breach of any of your rights under The Privacy and Electronic Communications (EC Directive) Regulations 2003.
9.6 We may use "cookies" and other software so as to be able to build up a profile of your interests and preferences and this may be used by us to develop and operate the Service.
10. Matters Beyond Reasonable Control
10.1 Sometimes we are unable to do what we have agreed due to something beyond our reasonable control. If this happens we do not accept responsibility for what has occurred.
11.1 You may not transfer the whole or any part of the Contract without our prior written consent.
11.2 Your Contract may be administered in whole or part by another company within Breathe.
12.1 If you have a complaint or query regarding any aspect of the Services including your bill, please contact us by calling Customer Services or by writing to us. Please include your your phone number if appropriate and customer account numbers in any correspondence.
12.2 If you are not happy with our response to any complaint or query that you make, you may refer your complaint to the Telecoms Omsbudsman at www.otelo.org.uk or on 0845 050 1614.
12.3 We aim to fully resolve all email queries within 5 working days of receipt and all written queries within 7 working days of receipt. In the unlikely event we are unable to fully resolve a complaint, you may refer your case to the Telecommunications Ombudsman, Otelo via Telephone on 0845 050 1614, or e-mail: email@example.com .
Changing these Conditions
13.1 We may change these Conditions at any time for legal, regulatory or commercial reasons. We will notify you of all such changes in writing and/or by publishing them on our Website (www.breathe.com). To the extent that we believe such changes are to your material detriment we will give you at least thirty (30) days notice of such changes by writing to you and/or publishing them on our Website or providing them on our Customer Services telephone line by way of a recorded message. If you object to a change that we believe is to your material detriment you may terminate your Contract without charge provided that you notify us in accordance with the provisions of clause 7 and within ten (10) days of our notification to you of the relevant change.
13.2 The Contract sets out the whole agreement between you and us for the provision of the Services and supersedes all prior agreements between you and us. Neither of us has relied on any representation arrangement understanding or agreement (whether written or oral) not expressly set out in these Conditions.
13.3 If any particular clause of these Conditions shall be, or be held to be, invalid or shall not apply to the Contract, the other clauses hereof shall continue in full force and effect.
How We Can Notify Each Other
13.4 Any notice which has to be given under these Conditions shall be in writing and shall be deemed to have been given by us if, left at or sent by post to you at the address stated in your application or any other UK address you supply to us for this purpose, or by you to us at the address given on your last monthly bill. Any notice or document shall be deemed to have been delivered immediately (if delivered by hand) or 48 hours after posting (if sent by first class post). References in these Conditions to notices given to you by us "in writing" and by email, which must be sent to your email address stated in your application or any other email address that you supply to us for the purpose. Notices given by us e-mail shall be deemed to have been delivered the day after the day the notice is sent. For the avoidance of doubt you shall not be entitled to serve any notice on us pursuant to these Conditions by sending an email.
DEFINITIONS AND INTERPRETATION
1.1 In these Conditions (unless the context otherwise requires):
"Billing Period"" means any period in respect of which we bill you from time to time for your use of any of the Services provided to you;
"Boost" means any one or more enhanced broadband feature or enhancement taken in addition to the Broadband Service;
"Broadband Service" means the high speed 'always on' Network access to the internet provided in accordance with the particular type of Tariff Plan chosen by you and supplied to your Premises via either our Network or your BT landline and which is provided in accordance with the terms of your Contract;
"BT" means British Telecommunications Plc, 81 Newgate Street, London EC1A 7AJ and may as the context requires include without limitation 'Open Reach' or any other trading division of BT from time to time;
"Call Service" means the service that we provide to you that allows you ability to make telephone calls in accordance with the terms of your Contract and which, for the avoidance of doubt, may include without limitation International Access. We may provide the Call Service to you using CPS, LLU, WCLI or any other service delivery method available to us from time to time;
"Charges" means our published list of prices as amended from time to time applicable both to our Services in general and your particular Tariff Plan. To obtain a copy please telephone Customer Services or visit our Website;
"Commencement Date" means the date upon which our supply to you of any Service commences, and the relevant Commencement Date for each Service will be as communicated to you by us. This date is not guaranteed but a Customer of the Call Services shall be deemed to be 'active' from 12 midnight on the day before such a Customer's Commencement Date;
"Conditions" means these terms and conditions as amended by us from time to time in accordance with clause 15.1;
"Content" means textual, visual or other information, software, photos, video, graphics, music, sound and other material appearing on or available through the Broadband Service or the Mobile Service including all information supplied by content providers from time to time;
"Contract" means the contract between you and us to pay for and receive the Service set out in these Conditions (together with such changes and/or other terms as may be notified to you from time to time) and your current Tariff Plan as amended from time to time;
"CPE" means customer premises equipment;
"CPS" means 'Carrier Pre Selection', which is the Network access mechanism that occurs when a particular telecommunications operator, automatically programmes your local telephone exchange to route your calls or traffic over a particular carrier's Network without your CPE having to be reconfigured or you having to dial additional (prefix) codes on your telephone prior to making a call or using any other telecommunications service;
"Credit or Debit Card" means your nominated credit or debit card, details of which you have provided to us by any means;
"Credit Limit" means any credit limit, which is applied to your account either when you apply for any Service or at any time thereafte r and described more fully in clause 9;
"Customer" means any customer who enters a Contract;
"Customer Services" means the customer services facility provided by us for you to report any faults with any Service or make general or account enquiries via 0871 424 0185 (or such other number as may be advised to you by us from time to time) or by using our ticketing service from within your "My Account " area. Customer Services help-line facilities are available in respect of both the Call and Broadband Service between the hours of 9am to 5pm Monday to Friday. If you call Customer Services from your Call Service fixed line telephone number, which is registered with FreeCalls Direct, such calls will be free, all calls made to Customer Services from other numbers will be charged at national rates. Calls to Customer Services may be monitored;
"Denial of Service Attacks" means any attacks to the Network on which the Broadband Service is provided or any other third party's Network, the purpose of which are to attempt to prevent legitimate users from using or enjoying the benefit of the Broadband Service or any other similar service (as the case may be), including but not limited to, attempts to 'flood' the Network or to disrupt users from connecting to, accessing or using the Broadband Service;
"Homemover Fee" means the fee published on our Website and which may be payable if you move house and wish to continue to receive the Service(s) at your new address;
"IDA" means indirect access which is a fixed line telephony product which allows a customer to access special call rates by first dialling a prefix immediately before making a call;
"Inclusive Calls to FreeCalls Direct Customers" means those calls, which are made: in the United Kingdom only; by Customers who have been notified that they are eligible to benefit from Inclusive Calls to FreeCalls Direct Customers;
- between Customers of our Call Services from their fixed line telephone number which is registered with us;
and which, if made in accordance with clauses 3.4 or 5.17 as applicable, will not cause you to incur Charges. For the avoidance of doubt, Inclusive Calls to FreeCalls Direct Customers do not include any calls between customers using Mobile Phones whether such calls are made on any mobile Network;
"International Access" means calls to international telephone numbers via our Network which may be made by dialling the Access Code prior to dialling the international telephone number that you wish to call. A list of the countries which may be called via the Access Code and the charges (if any) applicable to such calls is listed on our website at: www. breathe.com or is available from Customer Services or by emailing: customerservices@Breathe.com;
"internet" means shall mean the global data Network comprising numerous interconnected Networks communicating via telecommunications system as defined in Section 4(1) of the Telecommunications Act 1984 or by such other methods as may hereafter be developed, invented or discovered, commonly known as the internet;
"Line Rental Provider" means the service provider, such as us or BT, who rents to you the fixed telephone line that you use to receive the Services;
"LLU" means Local Loop Unbundling which is a technology that allows alternative telecommunications companies to put their own equipment onto the end of a consumer's copper local loop and own the connections for the local exchange instead of BT, so as to offer services in competition with BT;
"LR" means line rental;
"LR Service" means the LR service provided to you by us, which allows you to obtain from us the telephone line(s) on which you make your calls or connect to the internet. We may provide the LR service to you using either wholesale line rental or LLU;
"Minimum Period" means the minimum period that applies to your Contract, which will depend on the Tariff Plan you select at the time you place your Order. The following minimum periods apply:
(i) For any Customer who:
a. transfers their existing telephone line to our non-LLU LR Service; or
b. enters a Contract for the non-LLU Broadband Service only; or
c. enters a Contract for a new line installed for the non-LLU LR Service;
the minimum period is eighteen (18) months from the Commencement Date of any such Service.
(ii) For any Customer who either:
a. transfers their existing telephone line to our LLU LR Service; or
b. enters a Contract for the LLU Broadband Service only; or
c. enters a Contract for a new line installed for the LLU LR Service;
the minimum period is either eighteen (18) or twenty-four (24) months from the Commencement Date of any such Service, depending on your Tariff Plan. We will confirm what minimum period applies to your Contract during your registration process.
(iii) For any Customer who enters into a Contract (or upgrades an existing Contract) for certain products that we offer (which may include, without limitation, our combined products i.e. any product (whether supplied through LLU or not) under which you receive our LR Service, our Call Service and our Broadband Service), your Contract will have a minimum period of either eighteen (18) or twenty-four (24) months from the Commencement Date of your connection to the Call Service element of that product or from the date of your upgrade, depending on your Tariff Plan. We will confirm what minimum period applies to your Contract during your registration process.
"Modem" means the high-speed modem or wireless router and any ancillary equipment (which may include microfilters, wireless USB adapters and other peripheral equipment) that we, or our authorised distributors, may sell or supply to you when you subscribe to the Broadband Service that enables you to connect your personal computer ("PC") to any Network;
"Network" means as the context requires either the public switched telecommunications, internet protocol packet Network and/or a wireless telegraphy link by means of a cellular radio system operated by a Network Operator;
"Network Operator" means, as the context requires Opal Telecom, BT or such other company or companies from time to time that operate a fixed line or mobile Network or 'virtual' Network, which can be accessed for communication purposes;
"Order" means any order that you submit to us for any of the Services;
"Ofcom" means the Office of Communications;
"Premises" means the UK premises where we agree we shall provide you with the Broadband Service and/or the LR Service;
"Pre Pay" means where a Customer pays for their use of the Service in advance;
"Service(s)" means, as the context requires, any of: the LR Service; the FreeCalls Direct Service, the Call Service; the Broadband Service; or any other telecommunications services that we may provide to you pursuant your Contract;
"Breathe", "we", "us", "our" means Breathe Internet Limited (trading as Breathe and FreeCalls Direct) (registered in England under Company Number 6904784) of 3rd Floor, 207 Regent Street, London, W1B 3HH; "Tariff" means the tariff setting out our list of Charges for any of the Services we offer from time to time, copies of which are available at our Website or by contacting Customer Services. Although we are able to launch new Breathe products and/or alter our Tariffs at any time, if we make an alteration to your existing Tariff (but not if we simply launch a new Tariff), which has a material detrimental effect on you, the provisions of clause 15.1 may apply;
"Tariff Plan" means the monthly Tariff (that may include some elements which are not chargeable) which you select for the Services at the time you place your Order and which you may change from time to time by agreement with us and where we agree, such change to take effect at the start of your next Billing Period;
"Transmission Speed" means the rate in either thousands of bits per second ("Kbps") or millions of bits per second ("Mbps") that data is transferred between two modems. Your transmission speed is that specified in your Tariff Plan;
"WCLI" means the method of delivering our Call Service known as 'Wholesale Calls Line Independent', which involves the use of third party networks to deliver calls made by you through the Call Service;
"Website" means the website for the Breathe Internet business currently located at url: www.breathe.com; and "you" and "your" means the person named in the application process and/or, where the context requires, it includes a person we reasonably believe is acting on that person's authority. Words in the singular shall include the plural and vice versa and references to legal persons shall include natural persons and vice versa. The headings in these conditions are intended for reference only and shall not affect their construction.