Terms And Conditions

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BACKGROUND (A) NETRESELL is a wholesale communications services provider utilising the network capacity and services of a number of UK-based communications network providers. (B) The Reseller offers various voice and data services to Users (defined below) on a resale basis. (C) The parties wish to enter into this Agreement (defined below) in order to provide a framework under which the parties can enter into Orders and Service Schedules (defined below) for the supply and purchase of certain voice, data and/or other services.

Conditions:

1.13 All Service Schedules are supplemental to this Agreement and the terms and conditions set out in this Agreement shall, unless expressly provided otherwise, apply to each Service Schedule. 1.14 All Orders are supplemental to this Agreement and the applicable Service Schedule and the terms and conditions set out in this Agreement and the applicable Service Schedule shall, unless expressly provided otherwise, apply to each Order. 1.15 An obligation on a party to procure or ensure the performance or standing of another person shall be construed as a primary obligation of that party. 1.16 Any undertaking by the Reseller not to do any act or thing shall be deemed to include an undertaking that the Reseller shall procure that each User shall not do such act or thing.

2. TERM AND APPOINTMENT 2.1 The Agreement shall commence on the Effective Date and shall stay in full force and effect, unless and until terminated in accordance with this Agreement. Each Service Schedule shall commence on the applicable Commencement Date and shall stay in full force and effect in accordance with its terms. 2.3 NETRESELL shall use reasonable endeavours to provide the Services to the Reseller from the applicable Go-Live Date. 2.4 Subject to the terms of this Agreement and each Service Schedule, the Reseller shall be entitled to resell the Services to Users.

3. SERVICES, SERVICE ORDERS AND SERVICE LEVELS 3.1 Where the Reseller requires a Service, it shall place an Order for such Service through the Portal and/or by such other means as may be approved in writing by NETRESELL from time to time. No Orders may be placed by the Reseller unless the applicable Service Schedule is in force. 3.2 If the Reseller has a requirement to procure services which are the same or similar to the Services, it shall give NETRESELL the right of first refusal to supply those Services. 3.3 NETRESELL may at its sole discretion accept any Order. If NETRESELL requires additional information from the Reseller in order to accept an Order it shall notify the Reseller accordingly, and the Reseller shall provide such information. 3.4 Acceptance of an Order must be given in writing by an authorised representative of NETRESELL (notwithstanding clause 1.12, this may include by email). 3.5 NETRESELL shall be entitled to cancel and/or reject any Order at any time prior to the Go-Live Date of the Service without any liability to the Reseller whatsoever. 3.6 Without prejudice to any other right or remedy of NETRESELL, where the Reseller cancels or terminates any Order or Service Schedule: 3.6.1 prior to the Go-Live Date, it shall be liable to NETRESELL for the applicable Cancellation Charges; or 3.6.2 after the Go-Live Date and prior to the expiry of the applicable Service Minimum Period, it shall be liable to NETRESELL for the applicable Early Termination Charges. 3.9 The Reseller must report any actual or potential Service Failure to NETRESELL as soon as reasonably practicable via the Service Helpdesk, providing such information as NETRESELL may reasonably require to investigate the problem. NETRESELL will log the time of receipt of all such reports and shall use reasonable endeavours to investigate and respond to any issues reported to it by the Reseller in accordance with the applicable Service Levels. 3.10 The Reseller shall pay all costs, charges and expenses (which shall be considered Charges for the purposes of this Agreement), which NETRESELL incurs in investigating a fault (whether on Site or remotely) which the Reseller has reported, but which NETRESELL determines is either: 3.10.1 not a Service Failure; or 3.10.2 a Service Failure for which NETRESELL is not liable under the terms of this Agreement, a Service Schedule or Order.

5. CHARGES, INVOICING, TERMS OF PAYMENT AND SECURITY 5.2 All Charges shall be calculated by reference to data recorded or logged by NETRESELL (and shall be binding on the Reseller) and not to data recorded or logged by the Reseller (save in the case of a material and demonstrable error by NETRESELL). 5.3 All responsibility for the billing of Charges to a User and any User debt or fraud management resides with the Reseller (any failure or delay by a User to pay the Reseller shall not relieve the Reseller from liability to pay NETRESELL). 5.4 The Reseller shall make all payments by Direct Debit. If the Reseller cancels its Direct Debit or fails to pay by Direct Debit for any reason, NETRESELL may charge (and if charged, the Reseller shall pay) an administration fee of one percent (1%) of the invoice value or £100 (in each case excluding VAT) whichever is the greater. 5.6 Any delay by NETRESELL in invoicing the Reseller for the Charges shall not prohibit NETRESELL from raising an invoice at a later date in respect of the same, nor shall it relieve the Reseller of its liability to pay for the same. 5.7 In the event that the Reseller (acting reasonably and in good faith) wishes to dispute an invoice, or any part of an invoice issued by NETRESELL, it must do so within 14 days of the date of the invoice, providing full details of the dispute to allow NETRESELL to investigate it. Where an invoice is disputed in part, payment of the undisputed part must be made in accordance with clause 5.4. The Reseller shall be deemed to have accepted any invoice not disputed in accordance with this clause 5.7. 5.8 Subject to clause 5.7, all payments must be made by the Reseller without any set-off, counterclaim, withholding and/or any deduction whatsoever. 5.9 NETRESELL shall be entitled to set off any liability which the Reseller has to NETRESELL against any liability which NETRESELL has to the Reseller, whether such liability is present or future, liquidated or unliquidated, and whether it arises under this Agreement, any Service Schedule, any Order and/or any other contract between the parties or out of any other cause of action and irrespective of the currency of its denomination. 5.10 Interest on all undisputed amounts overdue to NETRESELL from time to time will accrue on a daily basis at an annual rate of the greater of (i) 3% above the base rate of the Royal Bank of Scotland plc at the time of calculation; and (ii) interest payable pursuant to the Late Payments of Commercial Debts (Interest) Act 1998, to run from the due date of payment until receipt by NETRESELL of the full amount (including any accrued interest) in cleared funds whether before or after judgment in respect of the overdue amount. 5.11 Within seven (7) days of a request by NETRESELL, the Reseller shall provide a Bond in an amount notified to the Reseller by NETRESELL, and in a form satisfactory to NETRESELL. The Reseller shall ensure that the Bond is maintained continuously from the date on which such Bond is required by NETRESELL until the date that the Reseller satisfies the last of its obligations to NETRESELL pursuant to this Agreement and all Service Schedules and associated Orders. The Reseller shall not revoke, amend or otherwise change the Bond without NETRESELL’s prior written consent. 5.12 If the Reseller fails to maintain the Bond as required by clause 5.11, this shall be deemed an irremediable breach of this Agreement by the Reseller and terminate this Agreement, and/or any and all Service Schedules and/or Orders in accordance with clause 12.4. 5.13 If NETRESELL determines that it would be commercially prudent to do so, NETRESELL may (in its absolute discretion) require the Reseller to (and if required, the Reseller shall): 5.13.1 provide increased or additional financial security; or 5.13.2 amend the form of the financial security, as a condition of the continued provision by NETRESELL of the Services to the Reseller. Additional financial security may include, without limitation, guarantees by third parties (including banks).

11. SUSPENSION 11.1 Without prejudice to any of its other rights or obligations under this Agreement or any Service Schedule or any Order, NETRESELL may upon giving notice in accordance with clause 11.2 suspend the provision of any Service (whether in whole or in part) without liability (subject to clause 15.1) if: 11.1.1 it is necessary for operational reasons such as upgrades to any of the Services or regular maintenance; or 11.1.2 it is necessary for emergency maintenance; or 11.1.3 a Service has been affected by a Force Majeure Event; or 11.1.4 NETRESELL or any Service Provider is required to so do in order to comply with any law, regulation, court order, or request, order, direction, determination or consent by or of a governmental or regulatory body (including without limit OFCOM) or authority; 11.1.5 it is entitled to (whether or not NETRESELL elects to) terminate the Agreement and/or any Service Schedule and/or any Order pursuant to clause 12.4 and/or clause 12.5; or 11.1.6 the Reseller fails to pay any invoice in accordance with clause 5.4. The Reseller shall continue to pay the Charges for the Services during the period of the suspension.

12. TERMINATION 12.1 The Agreement may be terminated at any time by either party serving no less than ninety (90) days’ written notice on the other, providing always that such termination shall not be effective prior to the expiry of the Minimum Term. Any such termination shall not affect any Service Schedules and Orders which are in force at the effective date of termination, and the terms and conditions of this Agreement shall survive to the extent necessary to give effect to such extant Orders and Service Schedules. 12.2 Any Order or Service Schedule may be terminated by the Reseller upon giving no less than ninety (90) days’ written notice to NETRESELL provided that such notice may not expire any earlier than the Service Minimum Period in the relevant Order or Service Schedule. 12.3 NETRESELL may terminate any Order or Service Schedule at any time upon thirty (30) days’ written notice to the Reseller. 12.4 Without prejudice to any party’s other rights under this Agreement and/or any Service Schedule and/or Order, either party may terminate this Agreement, and/or any Service Schedule and/or any Order with immediate effect by written notice in the event that: 12.4.1 the other party is in material breach of this Agreement and/or any Service Schedule and that breach cannot be remedied; 12.4.2 the other party is in material breach of this Agreement and/or any Service Schedule and where such breach is capable of remedy, the defaulting party fails to rectify such breach within thirty (30) days commencing on the date of the notice from the innocent party specifying the material breach; or 12.4.3 the other party is the subject of an Insolvency Event. 12.5 NETRESELL may also terminate this Agreement, and/or any or all Service Schedules and/or any or all Orders with immediate effect by notice in writing in the event that: 12.5.1 NETRESELL reasonably considers that an act, omission or default of the Reseller or a User will result in (or has resulted in) a failure by the Reseller or NETRESELL to comply with any applicable Legislation or constitutes fraud or other unlawful activity, or may place any of NETRESELL or its Group in breach of any agreement with a Service Provider;

15. LIMITATION OF LIABILITY 15.5 Subject to clause 15.1, NETRESELL shall not in any circumstances be liable to the Reseller whether in contract, tort (including without limitation negligence), misrepresentation, under statute or otherwise, howsoever arising and whether under this Agreement, any Service Schedule or any Order for any loss (whether direct, indirect or consequential) of: 15.5.1 business; 15.5.2 revenue; 15.5.3 profit; 15.5.4 contracts; 15.5.5 anticipated savings; 15.5.6 operation time; 15.5.7 reputation; or 15.5.8 data or equipment (including any corruption thereof), nor shall NETRESELL have any liability to the Reseller for any indirect, special and/or consequential loss whatsoever.

16. VAT 16.1 All Charges for Services are exclusive of Value Added Tax (VAT) or any similar sales taxes, which may be applicable. If any VAT or similar sales tax is chargeable by NETRESELL, this will be added to the charges shown on each invoice and shall be paid in addition by the Reseller. 16.2 The Reseller shall be solely liable for determining, and invoicing NETRESELL for, the amount of VAT and other taxes payable under this Agreement and/or under any Service Schedule or Order. 16.3 The Reseller will keep NETRESELL promptly informed of any changes to its business or legal structure, which has had, or may have, an impact on the tax treatment of the Services. 16.4 The Reseller hereby represents, warrants and covenants with NETRESELL that it is registered for VAT in the United Kingdom and will account for all VAT paid in accordance with the requirements of the United Kingdom tax authorities. The Reseller shall indemnify, keep indemnified and hold harmless NETRESELL and each NETRESELL Group company (and their respective successors and assigns) (who shall have no duty to mitigate their loss) in respect of any and all Losses (whether or not such Losses were foreseeable at the date of entering this Agreement and/or any Service Schedule) incurred or suffered by or made against any of them and whether, wholly or in part, resulting directly or indirectly from, or connected in any way with any breach by the Reseller (or any of its Representatives) of the warranty contained in this clause 16.4.

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