The terms and conditions incorporated in this online order or attached order form (“the Order”) constitute an addendum to the Company’s Supply Agreement (Electronic Communications Services Agreement, Telecommunications Services Agreement, Switchless Resale Agreement, Carrier Services Agreement or Interconnect Agreement as the case may be). Defined terms used that are not defined in this Order shall have the meanings attributed to them in the Supply Agreement and any terms of such Supply Agreement not expressly amended by this Order shall continue to have full force and effect. In case of a conflict between the provisions of this Order and the Supply Agreement the order of preference shall be as follows:
This Order applies when the Company purchases Gamma’s Ethernet Service.
Defined terms shall have the meaning given in the Supply Agreement and the Service Literature save for where specifically defined herein.
Gamma’s Ethernet Service consists of two variants:
In the event that the Ethernet Service is consumed alongside Gamma’s 4G backup or broadband services then the terms and conditions relating to those services shall also apply to those additional services. Such terms and conditions are available on the Gamma academy and are accepted at point of order on the Gamma portal.
1.1 Initial pricing for all Ethernet Services shall be obtained by the Company prior to submission of an Order.
1.2 Gamma provides the Company with an online pricing tool located on the Gamma Portal. Initial prices for Ethernet Services are provided subject to the receipt of complete and valid information, as required by the pricing tool.
1.3 Initial prices are provided without Excess Construction Charges (as defined in clause 2.6 below) the requirement for which may become apparent during the order process.
1.4 All prices generated by the pricing tool, although accurate at the time, are indicative only and subject to site survey. Definitive pricing can only be confirmed at point of order with the underlying access provider.
1.5 All Broadband backup services are quoted subject to availability.
2.1 The ordering process for the Ethernet Service is set out in the Service Literature.
2.2 The Company shall order the Ethernet Service through the Portal. In instances where orders cannot be placed on the Portal (as set out in the Service Literature) the Company shall order the Ethernet Service by first completing a Customer Requirements Form (“CRF”) provided by Gamma, and submitting the same to the nominated contact (as set out in the Service Literature) together with the Order.
2.3 Gamma shall validate any order received by whatever method before accepting it as an order. Gamma reserves the right not to process a CRF which is incomplete or not completed in accordance with the guidance section of the CRF.
2.4 Gamma shall either provisionally accept or reject the order submitted by the Company. Gamma shall not be obliged to give any reason for the rejection of an order. Provisional acceptance shall be provisional on any necessary site and installation surveys as set out in clause 6 below. Provisional acceptance shall not be binding on Gamma as regards any desired installation or commencement dates which shall be indicative in nature only.
2.5 Gamma may, as part of its provisional acceptance of the order, impose special terms which will be advised to the Company in writing. Any such special terms shall be deemed to be a variation of the order. In the event that Gamma imposes such special terms the Company may cancel its order without penalty within 10 days of notification thereof by Gamma.
2.6 Gamma may vary the initial pricing provided by the pricing tool (as set out in clause 1 above) by levying an additional charge where the provision of the Ethernet Service, or part thereof, requires the provision of resources that exceed the level of resource which would normally be required to supply such service (“Excess Construction Charges”). Gamma shall notify the Company of any such Excess Construction Charges as set out in the Service Literature. The Company shall either accept such Excess Construction Charges, in which case they shall be deemed to be incorporated in the order and a revised order will be reissued to include such charges, or reject them, in which case the order will be deemed to be cancelled. If the Company neither accepts nor rejects the Excess Construction Charges the order will be automatically cancelled by Gamma 14 days after notification of such charges. Although Excess Construction Charges are typically identified following site survey, it is possible in certain circumstances that they may arise later on during the provisioning process if, following an attempt to deliver the Ethernet Service, additional infrastructure, work is required to provide the Ethernet Service.
2.7 Initial prices provided for the rental of IP addresses or for the installation of equipment by Gamma are subject to subsequent change in the event that the prices charged to Gamma by its supplier or sub-contractor are increased subsequent to the placing of the order and before the Ethernet Service is activated. Any such price variation shall be restricted to the price variation actually suffered or enjoyed by Gamma
3.1 Gamma reserves the right not to provide the Ethernet Service to any site and to withdraw its provisional acceptance of an order for reasons including, but not limited to:
3.2 Subject to clause 3.1 above Gamma will issue a final acceptance of the order to the Company. Such final acceptance will include the agreed date that installation of the Ethernet Service can be completed by Gamma (the “Contractual Delivery Date”).
3.3 The Contractual Delivery Date may be later than the Customer required date shown on the order if
3.4 On a date during the order fulfilment process which will be advised by Gamma to the Company, Gamma or its nominated sub-contractor will visit the Customer site to install the network terminating equipment (“NTE”). Standard installation time is 3.75 hours. In the event that installation is extended beyond such time through no fault of Gamma (including, but not limited to, unreadiness on the part of the Company or its Customer, difficulty in accessing the site, non-availability of the named contact, necessity of decommissioning redundant hardware or lack of availability of the required power circuits) Gamma shall be entitled to charge the Company with additional charges that Gamma has incurred from its suppliers
Within two working days of completion of the installation of the NTE the Service will be connected to the Gamma network and, following the successful conclusion of a series of commissioning tests performed by Gamma or its nominated sub-contractor, the Service will be deemed to be ready for use and Gamma shall be entitled to invoice the Company for such Service from this date (“the Installation Date”).
The “Service Commencement Date” is subject to the installation by the Company of the required router (whether such is supplied by Gamma or not) and the completion of successful testing of the final installation with Gamma and may be subsequent to the date when the Service is deemed ready for use as set out above. Where the Ethernet Service is being used to provide connectivity to an IP telephony service the Company shall be responsible for the delivery of such telephony service over the Ethernet Service.
3.5 Gamma shall be responsible for the provision of the Ethernet Service including the Broadband backup Service where applicable up to the Service Demarcation Point, as defined in the Service Literature.
3.6 Gamma will use reasonable efforts to install the Ethernet Service (including Broadband backup where applicable) by the Contractual Delivery Date and perform the commissioning tests within two working days thereafter, all in accordance with the service levels set out in the Service Literature. The Company acknowledges that all timeframes are estimates only and that service levels are target service levels only. Except as set out in Service Literature, Service Credits as set out in the Service Literature shall be the Company’s only remedy in the event of any failure by Gamma to meet the Contractual Delivery Date or for any failure to meet any service levels or to repair a fault within any given timeframe.
3.7 The FTTC Ethernet Service requires a BT WLR3 line for service delivery. Gamma will not accept an order for this Service if no such line is present. An order can be placed through Gamma for the requisite line. This will be subject to a separate Charge.
3.8 The PSTN directory number is required to place an order for the FTTC Ethernet Service and the line must to be installed at the service point before an FTTC Ethernet order is placed.
3.9 The Broadband backup service must also be located within two (2) metres of the Ethernet termination point and router location.
3.10 The Broadband backup option is based on underlying Broadband technology and as such does not carry the same guaranteed service levels as the Ethernet Service. If the requirement is for a guaranteed secondary service then a secondary Ethernet Service should be considered.
3.11 The Broadband backup Service is selected by the Gamma pricing tool based on suitability. In the event that the backup Service should prove inadequate following installation, in Gamma’s reasonable opinion, Gamma will modify the backup Service to an alternative backup Service or cease the original backup Service and supply an alternative, backup Service where availability permits. Gamma reserves the right to charge a reasonable price for the installation of any such alternative backup Service.
3.12 Maximum line speeds for the Broadband backup Service are constrained by the maximum line speed WLR3 line speed subject to the availability of the same as set out in BT’s advertised coverage of exchanges in the UK.
3.13 Simultaneous provision of the requisite BT WLR3 line together with Gamma’s Broadband backup option is not available.
3.14 Where the Broadband backup Service is taken both the primary Ethernet Service and the Broadband backup Service will be delivered on the same day. If the Company or the Customer opts to take delivery of these services on different days and also opts for the onsite router installation option, each visit will incur Gamma’s standard visit charge unless the Company and/or Customer opts to connect the second service to the Gamma provided router. For the avoidance of doubt where the Broadband backup Service is added to an existing primary Ethernet Service and the Company and/or Customer requires the onsite router installation such addition and installation will be subject to Gamma’s standard charge for such work as detailed in its service literature.
3.15 For a Fibre Ethernet with Fibre Ethernet backup Service provided via the BT wholesale RAO2 service, the actual resilient path of both fibre connections will only be confirmed following a site survey. In the event that, following such site survey, it is found that the two connections would have a shared route (or partial shared route) the Company has the option of cancelling the order without penalty.
3.16 For a Fibre Ethernet with an EFM backup Service, both services will terminate in the same exchange as it is not possible to route to different exchanges (Fibre with Fibre backup must be used for this requirement).
3.17 FTTC Ethernet is not currently available as a backup to either Fibre Ethernet or EFM.
4.1 The Company may terminate the Ethernet Service or part thereof by following the procedure for termination set out in the Service Literature. Ethernet Service to a site may be terminated by the Company on either:
and the Company shall pay to Gamma the Charges due up to the date of such termination (the “Termination Date”). For the avoidance of doubt, in the event that the Company terminates an Ethernet Service, or part thereof, within its minimum contracted term (as set out in the order) Gamma shall be entitled to invoice the Company for the Charges up to the Termination Date together with any such Charges falling due as a result of its early termination and the Company shall pay any such invoice correctly raised by Gamma under its contractual terms of payment.
4.2 Save for reasons for earlier termination as set out in the Supply Agreement, Gamma may terminate the Ethernet Service or part thereof on three (3) months’ written notice to the Company provided that such notice extends the termination date beyond the end of the minimum term as set out in the order for that circuit.
4.3 Gamma may terminate the Ethernet Service immediately by notice to the Company if required to do so by a direction of Ofcom.
4.4 If the Company terminates the Ethernet Service or part thereof before the end of the minimum term Gamma shall be entitled to invoice the Company with Gamma’s recurring Charges for that Service from the effective date of termination for the remainder of the minimum term.
4.5 The Company agrees that if the Ethernet Service or part thereof is terminated for any reason it will inform the Customer of that fact and that the Customer needs to make alternative arrangements. This clause shall survive the termination of such Service.
4.6 If the Company cancels an ordered Ethernet Service or any part thereof, notwithstanding that the order such service has only been provisionally accepted by Gamma, the Company agrees to reimburse Gamma for any direct costs Gamma has incurred in preparing to deliver the Ethernet Service in addition to Gamma’s standard cancellation charge, which will be found in the Service Literature. Gamma will take all reasonable steps to mitigate any such costs. If the order includes any Excess Construction Charges such charges will be payable in full by the Company on cancellation of an ordered Service.
4.7 If the Company or its Customer cancels a planned installation after 12:00 p.m midday on the Business Day immediately prior to the installation date Gamma shall be entitled to charge the Company with the full amount which it would otherwise have charged for the aborted installation or, in the case of planned out of hours installations, 1.5 times its standard installation charge for planned installations after 17:30 on Business Days and Saturdays and 2 times its standard installation charge for planned installations on Sundays.
4.8 If the Company requests a change to the Customer required date and/or the Contractual delivery date (where this has been accepted by Gamma) and subsequently cancels the order any cancellation charge will be calculated using the later of the original Customer Required Date, the revised Customer Required Date and Contractual Delivery Date.
4.9 Gamma will not levy a cancellation charge in the event that the cancellation is as a direct result of Gamma’s failure to deliver the Ethernet Service within a reasonable timeframe.
4.10 Notwithstanding clause 4.2, Gamma will terminate the FTTC Ethernet Service in the event that the underlying WLR3 Service is terminated. The Company will remain liable for any recurring fixed Charges for the remainder of the fixed term of the affected FTTC Ethernet Service (as set out in the order).
4.11 Any FTTC broadband service is provided on a minimum 12 month term. Where a service is added to a live Ethernet primary connection that has a remaining contract period of less than 12 months, the FTTC broadband minimum 12 month term will still apply and Gamma shall have the right to invoice the Company for any unexpired part of such minimum term should the Service be terminated within this period.
4.12 Any FTTC/ADSL service terminated after the Service has been activated will be subject to Gamma’s standard termination charges (as set out in the Service Literature).
5.1 The Company may request a change to the bandwidth of an installed Ethernet Service as follows:
All such changes will be made in accordance with the lead times for such work set out in the Service Literature.
5.2 Internal shifts are not part of the FTTC Ethernet or Broadband backup Service and must be ordered as part of the WLR3 service. Any shifts may impact on the FTTC Ethernet speed (in the form of either a slower or faster speed).
5.3 Where more than one downgrade occurs in any one 12 month period, the monthly rental shall not be reduced for the second and any subsequent downgrades.
5.4 In the case of Converged Ethernet Services, the Charges pertaining to a secondary IP address range is taken are set out in the Service Literature and on the Portal.
6.1 Provision of the Ethernet Service will be subject to the completion of a satisfactory site survey by Gamma or its sub-contractor. The Company acknowledges that it will be necessary for Gamma or its sub-contractor to visit an Customer site or sites to conduct such survey and for the purposes of installation.
6.2 Where an appointment is made for Gamma or its sub-contractor to visit an Customer premise, including for the purposes of a site survey or for installation, and the visit cannot be successfully completed due to:
Gamma will charge the Company with its standard aborted visit charge.
6.3 Unless otherwise agreed in writing between the parties the Company must request that Gamma cancels the appointment within forty-eight (48) hours of notification by Gamma of Gamma’s preferred installation date. In the event that the Company does not agree such an appointment, the appointment will be deemed to have been fixed for Gamma’s preferred installation date unless a revised customer fequired date is subsequently agreed.
6.4 Site visits are subject to the site being within the United Kingdom (including Northern Ireland with the exception of Kingston upon Hull, Isle of Man, Isles of Scilly and the Channel Islands Gamma shall be entitled to levy reasonable additional charges for site visits and installations where this is not the case.
6.5 In respect of Converged Ethernet Services only it is the Company’s responsibility to install a router at the Customer site or sites where this is required and neither Gamma nor its designated sub-contractor shall bear any liability for any delays in the provision of the Service due to delay in the installation of such router.
7.1 The Company’s nominated contacts will be the only point of contact with Gamma for the notification of faults with the Ethernet Service and their resolution. The Company acknowledges that Gamma will not accept fault reports directly from an Customer and agrees that it will advise its Customers and Customers to report all faults to the Company.
7.2 Gamma and/or the supplier of such equipment will provide the maintenance of any equipment installed on a site as part of the Service on the Gamma side of the Service Demarcation Point.
7.3 The Company will be responsible for initial fault diagnosis and will report a fault to Gamma only where it reasonably believes the fault is not caused by any Customer installed equipment or any malfunction on the Customer facing side of the Service Demarcation Point. Gamma shall be entitled to charge the Company with its standard abortive visit charge if a visit results in the fault being traced to any Customer installed equipment or any such malfunction (or if Gamma or its sub-contractor fails to gain entry to the Customer site). In respect of the Converged Ethernet Service only Gamma shall also be entitled to invoice the Company for configuring, testing and despatching replacement routers in the event that no fault is subsequently found in the original router or its configuration (where provided by Gamma) or where a fault has been incorrectly diagnosed by the Company.
7.4 The Company will report any faults using the procedure set out in the Service Literature.
7.5 The Company is responsible for fault resolution for the underlying WLR element upon which any FTTC Ethernet Service operates.
7.6 The fault resolution time for the FTTC Ethernet Service as set out in the Service Literature does not include any time taken to first resolve any WLR faults affecting the availability or performance of the FTTC Ethernet Service. The target fault resolution time will commence from the time that it is established that the WLR line is in working order and is not affecting the FTTC Ethernet Service. It is recommended that the underlying WLR3 line be ordered with Service Maintenance Level 4 (6 hour fix) to allow for quick resolution of any faults relating to the WLR3 Service which affect the FTTC Ethernet Service.
7.7 In respect of the Converged Ethernet Service only, in the event of a fault on the primary Ethernet Service, the Broadband backup services will automatically become effective. Use of the secondary backup service is not permitted other than in the event of a primary circuit failure. In the event of a failure of both the primary and secondary circuits, Gamma will initially resolve the fault on the primary Ethernet circuit in accordance to the SLA as set out in the Service Literature.
7.8 In respect of the Converged Ethernet Service, in the event of that the Company fails to connect both the primary and secondary services to either the Gamma managed router or the Customer’s own router, the SLA will not come in to effect until such failure has been remedied.
8.1 The Company acknowledges and accepts that there may be certain technical limitations to the Ethernet Service as set out in clauses 8.2 to 8.4 below.
8.2 There may be technical or geographical limitations which do not enable the Ethernet Service to be installed. Provision of the Service is conditional on a site survey when such limitations will normally become apparent. In the event that a site survey reveals that the required Ethernet Service cannot be installed Gamma will cancel the order without charge to the Company.
8.3 If during the commissioning of the Ethernet Service it is found that, despite the reasonable endeavours of Gamma and/or its sub-contractor, the bandwidth performance as set out in the order cannot be achieved, Gamma will cancel the order without charge to the Company.
8.4 Certain technical limitations may not become apparent until after the Ethernet Service has been installed and has been working for some time. In such cases where no alternative solution can be found, Gamma shall be entitled to withdraw the Ethernet Service and will issue a credit or credits to the Company for any Charges which have already been invoiced to the Company in relation to the Ethernet Service (save for any charges for abortive visits). For the avoidance of doubt it should be noted that the available IP throughput of a circuit will be lower than the standard port speeds advertised owing to management and encapsulation overheads. Successful conclusion of the commissioning tests performed by Gamma or its nominated subcontractor shall be prima facie evidence that such management and encapsulation overheads are within normal parameters for the type of circuit concerned and no cancellation will be permitted under the provisions of paragraph 8.3 or 8.4 unless expressly agreed by Gamma.
8.5 In the circumstances referred to in clauses 8.2 to 8.4 above, and notwithstanding anything to the contrary in this order or in the Supply Agreement, Gamma shall have no liability to the Company for any failure to provide the Ethernet Service, the performance of the Ethernet Service, its effect on any other services or equipment or the withdrawal of the Ethernet Service, save as set out above.
8.6 Orders for the FTTC Ethernet Service will only be accepted where the predicted line speed is greater than 2Mbps in the downstream direction. Any orders with a predicted line speed below this will be cancelled and any Charges invoiced to the Company will be credited.
8.7 Actual available FTTC Ethernet line speed will be confirmed during the provisioning process. If the maximum upstream line speed is lower than originally ordered, Gamma will process the order to allow the confirmed highest available downstream speed. For example, if a 20Mbps service is ordered but the maximum available upstream line speed is 18Mbps, the order will be processed as a 20Mbps service however the actual usable line speeds will be 20Mbps in the downstream direction and 18Mbps in the upstream direction.
8.8 The FTTC Ethernet service provides guaranteed symmetrical bandwidth of up to 20Mbps. Gamma will use reasonable endeavours to provide a downstream bandwidth of greater speed where such is ordered but no fault report or cancellation will be accepted by Gamma for any failure to achieve a downstream bandwidth greater than this speed.
8.9 The Company acknowledges that bandwidth speeds may vary over time on an FTTC Ethernet circuit, especially immediately after first installation due to a number of technical considerations including, but not limited to, the distance between the Customer site and the connection cabinet or natural degradation of the underlying copper.
8.10 It is the Company’s responsibility to communicate the limitations contained in clauses 8.8 and 8.9 above to the Customer.
9.1 Equipment provided by Gamma or by its sub-contractors for the delivery of the Ethernet Service (“the Equipment”) remains the property of Gamma or its sub-contractors, as the case may be, and neither the Company nor the Customer shall acquire any property in it. Gamma will ensure its sub-contractor provides the network terminating equipment and, in the case of the Converged Ethernet Service, Gamma may provide the Customer premises router where such has been ordered from Gamma by the Company. In cases where the Company or the Customer supplies such router Gamma does not guarantee that any such router will be compatible with and/or suitable for use with the Ethernet Service. Gamma shall be entitled to charge (at its then current standard rates) for any configuration or other work performed by itself or any of its sub-contractors which is required to bring any router supplied by the Company or its Customer into a state where it is compatible with the Ethernet Service.
9.2 The Company shall (or shall procure that the Customer shall) provide a suitable place, conditions, connection points and electricity supply for the Equipment according to Gamma’s reasonable instructions, or those of Gamma’s sub-contractors, and carry out any site preparation work reasonably required by Gamma or its sub-contractors.
9.3 The Company shall (or shall procure that the Customer shall) obtain all necessary third party consents required in relation to building alterations or additions, access to land or other permission required to install the Equipment or, where this is carried out by Gamma or its sub-contractor, shall render all reasonable assistance required by Gamma.
9.4 The Customer is responsible for the Equipment and shall be liable to Gamma for any loss or damage to it save where such loss or damage is caused by fair wear and tear, is caused by Gamma, its sub-contractor or anyone authorised to act on their behalf. The Customer shall take all reasonable steps to prevent any damage to the Equipment and to prevent anyone (except anyone acting on Gamma’s or Gamma’s sub contractor’s behalf) from adding to it, modifying it or interfering with it in any way.
9.5 The Company shall include provisions equivalent to clauses 9.1 to 9.4 above in its contracts for the Ethernet Service with its Customers.
10.1 Any equipment connected to the Ethernet Service must be technically compatible with the Ethernet Service and connected and used in compliance with any applicable instructions, standards or laws. Any such equipment should not cause any damage to the Gamma network, the Ethernet Service, the Equipment, any other customer’s network or the network of any underlying service provider.
10.2 The Company agrees, and will ensure its Customer is contractually bound, to only connect equipment to the Converged Ethernet Service by using the CPE provided by Gamma.
10.3 If the Company, its Customers or its Customers become aware that any equipment connected to the Ethernet Service does not comply with the relevant instructions, standards or laws they should immediately disconnect the equipment or ensure its immediate compliance. Failure to disconnect non-compliant equipment will result in Gamma disconnecting it at the Company’s expense.
10.4 Gamma will not be liable for any failure to meet any service levels or any failure of the Ethernet Service or any other obligations if such failure has been found to be caused by the connection of any equipment other than in compliance with this clause 10.
11.1 Gamma and/or its sub-contractor will conduct any required site visits during normal working hours, that is to say between 08:00 and 17:00 Mondays to Fridays (excluding UK public and bank holidays). In the event that the Company requests a site visit outside such hours this will be the subject of an additional charge. Such charge will not apply to visits to repair faults.
11.2 The Company will procure that the Customer will provide access to the site to Gamma and/or its sub-contractor for the purposes of site surveys, installation or otherwise as required for the provision of the Ethernet Service. The Company shall provide and procure that the Customer provides a suitable and safe working environment for Gamma’s employees and authorised sub-contractors at the site. The Company shall indemnify Gamma and its sub-contractors for death or personal injury claims or actions threatened or brought against them resulting from the Company’s breach of this clause 11.2, save where such claim or action results from Gamma’s negligence or that of its employees, sub-contractors or agents acting in the course of their employment or agency.
11.3 Gamma agrees to observe and ensure that its employees observe the Company’s and/or the Customer’s reasonable security and safety requirements insofar as these are communicated to Gamma or its employees.
11.4 It is the responsibility of the Customer to make good or re-decorate any areas of the site affected by the installation of the Ethernet Service save where any damage is caused by Gamma’s negligence in which case the limitation of liability provisions of the Supply Agreement shall apply.
12.1 If Gamma notifies the Company (or the Company becomes aware) that the Ethernet Service is being used in breach of the Use of Services provisions contained in the Supply Agreement the Company shall immediately inform the Customer that the Ethernet Service will be disconnected if the breach continues. If the Customer continues to use the Ethernet Service in breach the Company will immediately disconnect the Ethernet Service.
12.2 If the Company uses the Ethernet Service in breach of the Use of Services provisions of the Supply Agreement or continues to supply the Ethernet Service to an Customer who is in breach of such provisions Gamma may suspend the Ethernet Service, insofar as is reasonable in the circumstances, without prejudice to Gamma’s rights of termination under this Order.
13.1 The Company shall not use Gamma’s or Gamma’s sub contractors’ name or any registered or unregistered trademarks or service marks of Gamma or its sub-contractors without the prior written consent of Gamma. The Company shall ensure that contracts made between the Company and its Customers and End Users relating to the Ethernet Service are not represented as being with Gamma or its sub-contractors or branded with Gamma’s or its sub contractors’ marks or logos but rather are clearly stated to be contracts between the Company and the Customer or End User, as the case may be.
13.2 The parties undertake that in relation to their dealings with Customers and End Users and/or potential Customers and End Users they will not:
The Company also agrees not to represent that the Ethernet Service is a service provided by Gamma’s underlying service provider or that the Customer has access to a dedicated service provided by either Gamma or its underlying service provider.
13.3 If the Company is entitled to one or more Service Credits under the provisions of the Service Literature the Company acknowledges that Gamma’s liability in relation to the subject of such Service Credits is limited to the amount of such credit.