Terms & Conditions

Welcome

Welcome to Diacom, the home of Digitally Applied Communications for your business. Here at Diacom we want to make your life as easy as possible.

We hate small print but as we operate within regulated markets we have to ensure that we’re very explicit about our services and terms.

We have tried to keep our terms and conditions in clear sections so you can find what you want as quickly as possible. If you think we can make any improvements or you have a specific concern, please let us know and we will see what we can do.

Contents

    1. Interpretation
  • 2. Provision of the Services

  • 3. Existing Installation Inspection

  • 4. Commencement and Term

  • 5. Changes to the Agreement

  • 6. Terminating the Agreement

  • 7. Clauses following Termination

  • 8. Transition following Termination

  • 9. Non-Solicitation

  • 10. Client’s Obligations

  • 11. Equipment Delivery and Ownership

  • 12. Third Party Services

  • 13. Third Party Software

  • 14. Misuse of Services

  • 15. Charges, Payments and Records

  • 16. Data Protection

  • 17. Data Protection as Controller

  • 18. Data Protection as Processor

  • 19. Information and Audit

  • 20. Call monitoring

  • 21. Confidentiality

  • 22. Service Changes or Interruptions

  • 23. Force Majeure

  • 24. Limitations of Liability

  • 25. Nature of the Services Agreement

  • 26. Dispute

  • 27. Law and Jurisdiction

  • 28. Counterparts

  • 29. Relationship of the Parties

  • 30. Costs

  • 31. Copyright

1. Interpretation

  1. 1.1  These Terms and Conditions are provided by Diacom Networks Ltd a company registered in England and Wales under number 07047055 whose registered office is at 11 Mallard Way, Pride Park, Derby, Derby, DE24 8GX
  2. 1.2  The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of this Agreement.
  3. 1.3  Words imparting the singular number shall include the plural and vice versa.
  4. 1.4  References to any gender shall include any definable gender.
  5. 1.5  Unless the context otherwise requires the following definitions and interpretations shall apply to these Terms and Conditions and to any Service Agreement entered into:

“Available Services” Shall mean the Services and Products offered by Diacom from time to time. “Services” shall mean the deliverables specified within the Service Agreement.

“Services Agreement” “Contract” shall mean any Services Agreement or Order Schedule entered into by You by signature or verified authorisation whether electronic or other means.

“Business Day” means, any day (other than Saturday, Sunday or Bank Holiday) on which You are open for normal business in the United Kingdom;

“Data Protection Legislation” means any applicable law or regulation including but not limited to the Data Protection Act 2018 (“DPA2018”) and the General Data Protection Regulation (GDPR) relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

“Controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “subject access request” “processing” and “appropriate technical measures” shall have the meaning expressed in Pt 2 Ch1 of the Data Protection Act 2018 (DPA2018) and Article 4 of the General Data Protection Regulation (GDPR).

“Commencement Date” means the date on which the Service Agreement comes into force pursuant to Clause 3;

“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);

“Data” means any data held by the “Client” and Processed by Diacom Networks Ltd

“Intellectual Property” means patents, trademarks, service marks, rights (whether registered or unregistered) in any designs, applications for any of the foregoing, trade or business names and copyright;

“Premises” means Your Premises at [Client Address] or such other Premises as may be notified from time to time by [Client Name] to Diacom Networks Ltd

“Equipment” means the equipment including software and systems identified in the Service Agreement, Order Schedule or otherwise notified to you in writing that we will sell, rent, loan, maintain or Service, subject to the provisions of the Service Agreement.

“Existing Installation” means existing infrastructure including cabling, electrical supplies, Equipment and other Services that Diacom has not installed under the Services Agreement

“Line” means a connection to our network or that of our suppliers, whether direct or indirect.

“Service” means the services to be provided by Diacom Networks Ltd to You as set out in Service Agreement.

“Project Work” means one off Services provided by Diacom Networks Ltd to You as set out in the Service Agreement that may include but not be limited by one off or large-scale work outside of Our regular monthly Service offering.

“Contract Renewal” means an automatic renewal of your contract for a further 12 months after the initial Minimum Term and each subsequent 12-month renewal thereafter.

“Client” “You” “Your” means the client of Diacom Networks Ltd

“Provider” “Our” “Us” “We” “Diacom Networks Ltd” herein referred to as “Diacom” means Diacom Networks Ltd.

“Parties” shall mean Diacom, the Client and any others subject to the Service Agreement

“Third Party Suppliers” “Suppliers” shall mean software, products and services that are manufactured, developed, hosted and/or maintained by organisations external to Diacom Networks Ltd either supplied through Diacom Networks Ltd acting in the capacity as a reseller, agent or referrer only.

“Written Permission” shall mean any communication effected by electronic means including email, letter, contract or other such amendment that indicates the Clients instructions

2. Provision of the Services

  1. 2.1  Diacom is engaged in the business of providing IT and Telephony based services in relation to end user support, network infrastructure, network and desktop hardware, network and desktop software, disaster recovery, telecommunications, saas based applications, broadband services and managed cloud based platforms and has reasonable skill, knowledge and experience in that field.
  2. 2.2  Diacom shall provide the Services to the Client in accordance with these Terms and Conditions.
  3. 2.3  Diacom shall provide the Services with reasonable skill and care expected from a leading serviceprovider in the industry.
  4. 2.4  Diacom shall, throughout the continuance of the Agreement, use reasonable endeavours to providethe Services and shall promptly obtain, maintain and make available all necessary assets, equipment, premises, vehicles, personnel, capital and other facilities required for the provision of Services.
  5. 2.5  Diacom shall provide the Services described in the Service Agreement at the Premises or as otherwise agreed by the Parties.
  1. 2.6  Diacom shall use reasonable endeavours to observe all health and safety and security requirements that apply at any of the Clients premises and that have been communicated to it under Clause 10 provided that it shall not be liable under these Terms and Conditions if, as a result of such observation, it is in breach of any of its obligations under these Terms and Conditions or Services Agreement.
  2. 2.7  It is acknowledged and understood that some Services described in the Service Agreement include Products and Services manufactured, developed, hosted, maintained or otherwise provided by Third Party Suppliers. (Third Party Services)
  3. 2.8  Before providing the Services You Consent that Diacom may carry out searches with credit reference agencies relating to the credit worthiness of the Client and/or your owners, directors, officers.
  4. 2.9  Time for delivery shall not be of the essence. The agreed dates for delivery of the Equipment or performance of the Services are estimates only and a failure by Diacom to comply with them shall not be a breach of the Contract.
  5. 2.10  Information or advice given orally or contained in Our publicity material, advertisements and catalogues and in any correspondence between Diacom and the Client before the start date of the Contract, is given gratuitously and without responsibility on the part of the Company, and shall not form part of the Service Agreement unless specifically agreed in writing and signed by a duly authorised officer of Diacom.
  6. 2.11  Any Service Agreement or quotation for Equipment given by Diacom is not an offer and is only valid for 30 days from its date of issue except where Third Party Suppliers increase costs or time limit promotional pricing.
  7. 2.12  No variation of these Terms and Conditions is permitted unless expressly accepted in writing.
  8. 2.13  Blank

3. Existing Installation Inspection

  1. 3.1  If We have not carried out the supply or installation of the equipment covered by the Services Agreement, then we shall be entitled to carry out a pre-support inspection and test of the existing installation. The inspection shall be subject to a supplementary charge payable by the Client prior to the commencement of Services for the Equipment inspected. L
  2. 3.2  If in the opinion of Diacom the existing installation is not of a standard that is reasonable and capable of being supported, we will provide You with a written estimate to restore the installation to such a standard.
  3. 3.3  If Client accepts Our estimate, We shall, without undue delay, endeavour to restore the existing installation to the required standard, provided that time is not of the essence in relation to the performance of this obligation.
  4. 3.4  If the Client rejects the estimate, then Diacom may (without affecting its accrued rights) terminate the Service Agreement with immediate effect. Diacom will return any funds received in payment for support under this contract within 60 days. The supplementary charge for the pre-support inspection remains payable in full and may be deducted from any funds returned to the Client under the terms of this clause.
  5. 3.5  Client accepts that no warranty in Existing Installations will be given by Diacom.

4. Commencement and Term

  1. 4.1  The Agreement shall come into force on the Commencement Date set out in the Services Agreement or Order Schedules.
  2. 4.2  In the event the Commencement Date is not specified on the Services Agreement or where there may be any conflict regarding your Contract Commencement Date, then you agree the actual Commencement Date will be the date you first used the Service.
  3. 4.3  The Minimum Term will be as specified on the Service Agreement, for each Service, or as otherwise agreed with you in writing.
  4. 4.4  In the event that the Minimum Term is not on the Service Agreement or Order Schedules or Tariff then the Minimum Term will be 36 (Thirty-Six) months from Your Commencement Date.
  5. 4.5  Contract Renewal will automatically follow the Minimum Term on the anniversary of the original Commencement date and constitute a minimum term.
  6. 4.6  In the event of You placing an order and make a payment online for that order and we accept your order, we will confirm your order and receipt of payment by email at which point your contract will be binding. You may also get a payment confirmation from the third party payment processing company. Where we do not accept your order we reserve the right to return a payment to you. You should contact us immediately if you have any concerns regarding the order or payment. Where you fail to advise us of any issues regarding your online payment, we are not liable for any consequences of any such payment but will make reasonable endeavours to rectify any of your concerns.

5. Changes to the Agreement

  1. 5.1  Any change to the Services requested by you will require confirmation by Purchase Order, additional agreement or agreed communication method.
  2. 5.2  No action will be taken by Us to carry out any change to Service until we have received your written confirmation. If we agree to a change, the Service Agreement will be accepted as changed.
  3. 5.3  When changes are made to the contract due to new starters or leavers adjustments to the billingwill start from the 1st of the following month.
  4. 5.4  You will inform us within 14 (fourteen) days of any license or charge no longer required and this willbe adjusted from the 1st of the following month following our acceptance.
  5. 5.5  We will not credit you for unused licenses or other costs where you haven’t informed us.
  6. 5.6  We may change the Terms and Conditions or the Service Agreement (or any document comprisingpart of the Agreement, including the Tariff for any Service) at any time on giving you 30 (Thirty)day’s notice.
  7. 5.7  We will notify you of any changes on your monthly invoice or by other correspondence. You agreethat if you continue to use the Services following receipt of such notice you will be bound by thenew/revised Conditions.
  8. 5.8  We reserve the right to pass on any increase in our costs for the Services we provide to you at anytime by giving 30 (Thirty) day’s notice, including those outlined in Clause 15.2 and 15.3. Theseincreases will not be considered a change of the Service Agreement.
  9. 5.9  Other than clause 5.8, if a change has a material adverse effect on You or the Services we providethen the termination charges detailed in Clause 6.4 will not be payable by you if you wish to terminate the Agreement or any of the Services before the end of the Minimum Term applicable to each of the Services.

t: 01332 404 202 email: info@diacomnetworks.co.uk Digitally Applied Communications

5.10 No other variation in Terms and Conditions or Service Agreement will be agreed to by Us unless We confirm them in writing to You.

6. Terminating the Agreement

  1. 6.1  Either Party may forthwith terminate the Services Agreement by giving written notice to the other Party if:
    1. (a)  We believe that the Service is being used in a way forbidden by Clause 14. This applies even if you do not know that the Service(s) are being used in such a way;
    2. (b)  any sum owing to that Party by that other Party under any of the provisions of this Agreement is not paid within 30 (Thirty) days of the due date for payment;
    3. (c)  that other Party commits any other breach of any of the provisions of these Terms or the Service Agreement and, if the breach is capable of remedy, fails to remedy it within 30 (Thirty) days after being given written notice giving full particulars of the breach and requiring it to be remedied;
    4. (d)  an encumbrancer takes possession, or where that other Party is a Client, a receiver is appointed, of any of the property or assets of that other Party;
    5. (e)  the other Party makes any voluntary arrangement with its creditors or, being a Client, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
    6. (f)  that other Party, being an individual or Client, has a bankruptcy order made against it or, being a Client, goes into liquidation (except for the purposes of amalgamation or re- construction You effectively agree to be bound by or assume the obligations imposed on the Client under the Services Agreement);
    7. (g)  anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other Party;
    8. (h)  that other Party ceases, or threatens to cease, to carry on business; or
    9. (i)  you providing 90 (ninety) days’ notice of the annual anniversary of the CommencementDate or Anniversary Date of the Commencement Date.
  2. 6.2  Where a Service has a notice period of greater than ninety (90) days then this notice must be provided on that Service.
  3. 6.3  For the purposes of sub-Clause 6.1(c ), a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
  4. 6.4  If Client want to terminate the Service Agreement in respect of a Service prior to the end of the Minimum Term for the relevant Service (other than because We have materially altered the conditions of these Terms and Conditions or the Services Agreement under clause 5) you must give us at least forty-five (45) days notice in writing and we will levy a cancellation charge calculated in accordance with the following:
    1. (a)  Each Service for which a monthly rental charge is payable – number of months remaining of Minimum or Contracted Term for that Service multiplied by the monthly rental; and/or
    2. (b)  Call Spend – number of months remaining on Minimum Term multiplied by the monthly Minimum Spend (or the average of your last three months call spend where there is no Minimum Spend); and/or

(c) Pro-rata or full repayment of any subsidised installation or any other contribution to upfront or ongoing costs paid by Diacom and in accordance with the terms of the subsidised installation, and/or

  1. (d)  The appropriate notice period charge for each Service, and/or
  2. (e)  Repayment of any discount or other benefit you may have received which wasbased on a minimum contract term commitment, and/or
  3. (f)  Any applicable cease charges as may be detailed in the tariff.
  1. 6.5  Should you fail to pay the early termination cancellation charges within 14 (fourteen) days of the date of invoice we reserve the right to suspend your services.
  2. 6.6  If you have paid any rental in respect of a Service for a period after this Agreement has ended in respect of that Service, we will either repay it or off set towards any money you owe us.
  3. 6.7  If Written notice is required it shall be delivered to by hand or sent by email as follows:
    1. (a)  to Us at the address or email address shown on the Service Agreement or on your last invoice, or at any other address or email address we give you;
    2. (b)  to You at the address you have asked us to send invoices to or to the email
  4. 6.8  Notices shall be deemed to have been duly given:
    1. (a)  when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
    2. (b)  when sent, if transmitted by e-mail and a successful transmission report or return receipt is generated; or
    3. (c)  in each case addressed to the most recent address or e-mail address, notified to the other Party.

7. Clauses following Termination 7.1 Following termination of the Service Agreement:

  1. (a)  any sum owing for any provisions under these Terms and Conditions and/or Service Agreement shall be immediately payable;
  2. (b)  Where We owe you any monies, you agree that we may offset this against any monies you may owe us before we make any payment to you.
  3. (c)  Termination charges for any subsidised installation will remain in effect and will be payable by You.
  4. (d)  You shall return all Diacom Equipment. If the Client fails to do so, then We may enter Your premises and take possession of the Equipment. Until the Equipment has been returned or repossessed, You shall be solely responsible for its safe keeping;
  5. (e)  Any rights or obligations to which any of the Parties to this Agreement may be entitled or be subject before its termination shall remain in full force and effect;
  6. (f)  The rights to terminate the Service Agreement given by Clause 6.1 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach;
  1. (g)  Termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination
  2. (h)  subject as provided in this Clause 7 or Clause 8 and except in respect of any accrued rights neither Party shall be under any further obligation to the other;
  1. 7.2  Each Party shall (except to the extent referred to in Clause 18) forthwith cease to use, either directly or indirectly, any Confidential Information, and shall forthwith return to the other Party any documents in its possession or control which contain or record any Confidential Information. L
  2. 7.3  Blank.

8. Transition following Termination

  1. 8.1  Diacom shall use their best endeavours to assist any successor organisation appointed by Client to provide the services described in the Service Agreement.
  2. 8.2  The Customer may, at any time before expiry or termination of all or any part of this agreement request Diacom to provide Transition Services or otherwise to offer reasonable assistance in transitioning the Services to a Replacement Supplier by providing the Transition Services.
  3. 8.3  Diacom shall, in consideration of a reasonable fee to be agreed in advance, provide such Transition Services for a maximum period of 3 (three) months, or until expiry or termination of all or any part of the Service Agreement for any reason in accordance with Clause 6 whichever is later.

9. Non-Solicitation

  1. 9.1  The Client shall not, without the prior written consent of Diacom, at any time from the Commencement Date to the expiry of 12 (Twelve) months after the Termination of the Service Agreement, solicit or entice away from Diacom or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Service Agreement. L
  2. 9.2  Any consent given by Diacom in accordance with clause 9.1 shall be subject to the Client paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of Diacom’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.

10. Client’sObligations

  1. 10.1  The Client shall allow Diacom and its personnel access at all reasonable times to the Premises for the purpose of providing the Services.
  2. 10.2  During any fault investigations, Diacom may require you to carry out tests or follow instructions from Us to allow Us to follow our standard procedures and conclude our investigations.
  3. 10.3  It is the responsibility of the Client, at its own expense:
  1. (a)  to obtain and make available to Diacom or its agents or sub-contractors clear and unobstructed access to the Premises to enable the installation or service of the Equipment to proceed from any agreed date;
  2. (b)  make available mains electric power supply, conduits, sockets and such like, together with any peripheral equipment not included in the Equipment or Services, to enable the installation or Service of the Equipment to proceed from any agreed date;
  3. (c)  Ensure all the Clients Equipment is in good working order and suitable for the purposes for which it is used in relation to the Works and conforms to all relevant United Kingdom standards or requirements;
  4. (d)  obtain all licences, permits, way leaves, easements, and other third party consents as are necessary for the installation or Service of the Equipment or its connection to the relevant network, by the agreed date for the commencement of the Services from the agreed date;
  5. (e)  provide Diacom or its agents or sub-contractors all necessary or reasonable information and co-operation to enable installation or Service of the Equipment to proceed from the agreed date;
  6. (f)  provide Diacom with such operational and or policy advice in connection with the performance of the Services as Diacom may from time to time reasonably require and provide Diacom with all necessary literature, books, office manuals and other material which [Client Name] requires to be observed;
  7. (g)  obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Diacom to provide the Service, including in relation to the installation of the Supplier’s Equipment, the use of all Clients Materials and the use of the Clients Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Works are to start;
  8. (h)  keep, maintain and insure (if applicable) the Supplier’s Equipment in accordance with the Supplier’s instructions from time to time and not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation;
  9. (i)  retain any license keys, CDs or other media for devices or third-party software not purchased through Diacom. Should these be mislaid or fail to load correctly you will be responsible for the cost of replacement licenses or media
  10. (j)  ensure you have adequate resilience in place to protect against any loss of data, service or connectivity if not supplied by Diacom.
  1. 10.4  It is Clients responsibility to ensure that signing a Service Agreement with Diacom does not breach any existing contractual obligations you may have with any other suppliers and you should give any other suppliers notice as may be required by them. Diacom is not responsible or liable for any costs, financial losses or disputes that may arise from any such breach of contract or your failure to give the correct notice.
  2. 10.5  The Client and Diacom shall each use their best and reasonable endeavours to keep each other informed of any special requirements (including statutes and codes of good practice) applicable to the rendering of the Services. To the extent necessary and appropriate Diacom shall promptly take steps to comply with such special requirements.
  1. 10.6  It is Clients responsibility to keep private any user names, passwords or pin codes that we may provide, or you hold in conjunction with the use of any of Our Services. You warrant liability for all charges associated with the use of such user names, passwords and pin codes to access Our or Third Party Services or Software unless you advise us that the security of any of the user names, passwords or pin codes may have been compromised and we confirm back to you that we have disabled the access.
  2. 10.7  Should you fail to notify us of any such compromise in security in Clause 10.5 then you will remain liable for all charges incurred in accessing the Services. Where we disable any access following a compromise in security, we shall provide you with new user names, passwords or pin codes as appropriate which are subject to the terms of this clause.
  3. 10.8  The Client shall ensure prompt payment of any deposits or fees required for Service as outlined in Clause 15.
  4. 10.9  In the event that Client or any third party, not being a subcontractor of Diacom, shall omit or commit anything which prevents or delays Diacom from undertaking or complying with any of its obligations under this Agreement, then Diacom shall notify Client as soon as possible and Diacom will have no liability in respect to any delay in the provision of the Services.

11.Equipment Delivery and Ownership

  1. 11.1  The Equipment shall be at the risk of the Client from the time of delivery or, if the Customer has requested to arrange for collection of the Equipment, from the date when Diacom notifies the Client that the Equipment is ready for collection.
  2. 11.2  Client is required to inspect the Equipment upon delivery and to notify Diacom of any defects or complaints within 7 days, or (where Diacom is to install the Equipment as part of the Service) to notify Diacom of any defects or complaints within 7 days of installation of the Equipment, failing which Client shall be deemed to have accepted the Equipment and shall be liable to pay the full price.
  3. 11.3  If Client fails to accept or take delivery of the Equipment within 14 days of Diacom notifying the Customer that the Equipment is ready, then (except for Force Majeure or breach of Contract by Diacom):(a) deliveryshallbedeemedtohavebeencompleted3daysafterDiacomnotifiedtheClient that the Equipment was ready and;(b) maystoretheEquipmentatthecosttotheClient.
  4. 11.4  If 14 days after Diacom has notified the Client that the Equipment was ready to be delivered the Customer has not taken delivery, then the Company may sell the Equipment at the cost of the Customer and charge the Customer for any shortfall
  5. 11.5  Notwithstanding that risk in the Equipment has passed to the Customer in accordance with Condition 10.2(h), the Equipment shall remain the sole and absolute property of Diacom, and title to and legal and equitable ownership of the Equipment shall not pass to the Client, until payment is received by Us of all monies due from You to Us under any Service Agreement or Contract.
  6. 11.6  Until ownership of the Equipment has passed to the Customer, the Customer shall:(a) hold the Equipment on a fiduciary basis as the Companies bailee;(b) sell, lease, charge, assign by way of security or otherwise deal in the Equipment, but may use the Equipment in the ordinary course of its business;

          (c) keep the Equipment in good condition and store and use it in all respects in accordance with the manufacturer’s guidelines;

(d) keep the Equipment in good condition and store and use it in all respects in accordance with the manufacturer’s guidelines; not destroy, deface, remove or obscure any labels, badges, serial numbers or other means of identification of the Equipment and ensure that the equipment is clearly identifiable as belonging to The Company;

(e) ensure the Equipment for its full replacement value with a reputable insurance company and shall upon request provide a copy of the insurance certificate to the Company.

12. ThirdPartyServices

  1. 12.1  Further to Clause 2.7 Client recognises that in some cases, Diacom provide services on a referral or reseller basis that are wholly outside of Our control.
  2. 12.2  These may include (but are not limited to):
    1. (a)  The ability to make or receive a Telephone Call including a signal, message or communication which is silent, spoken or visual (Telephone Service);
    2. (b)  The provision of a Line or Lines for a rental charge (line rental service);
    3. (c)  The provision of Broadband internet access (Broadband service);
    4. (d)  The provision of Inbound telephony services (Inbound service);
    5. (e)  The provision of Mobile services (Mobile service);
    6. (f)  The provision of IP telephony services (IP Services);
    7. (g)  The provision of equipment that you will wholly own
    8. (h)  Other Services which we may offer for sale from time to time.
  3. 12.3  Diacom and Client may mutually agree to have Services in this Clause 12 sourced and invoiced by Diacom as part of the Services.
  4. 12.4  The Service Agreement will clearly state these Third Party Services. In the event these services are not clearly stated it will be granted that all services described in clause 12.2 will be classed as Third Party Services.
  5. 12.5  It is acknowledged and accepted that Diacom has a duty of care in offering these services and will undertake to liaise at all times with the Third Party on the Clients behalf.

13. ThirdPartySoftware

  1. 13.1  Further to Clause 2.7 Client recognises The Services Diacom may include provision of software and support of this software from Third Parties as part of the Services.
  2. 13.2  Blank
  3. 13.3  These include but are not limited to:(a) Anti Virus Software
    (b) Threat Detection Software
    (c) Cloud Based Firewall Services
    (d) Hosting Software including but not limited to Microsoft Office 365
    (e) Third Party Applications including but not limited to Legal Casework Software (f) Other Services which we may offer for sale from time to time.
  1. 13.4  Diacom and Client may mutually agree to have Services in this Clause 13 sourced and invoiced by Diacom as part of the Services.
  2. 13.5  The Service Agreement will clearly state these Third Party Services. In the event these services are not clearly stated it will be granted that all services described in clause 13.2 will be classed as Third Party Services. L
  3. 13.6  It is acknowledged and accepted that Diacom has a duty of care in offering these services and will undertake to liaise at all times with the Third Party on the Clients behalf.

14. Misuse of Services

  1. 14.1  Client must not misuse the Services and indemnifies Diacom from all claims resulting in sums we are obliged to pay and costs we incur resulting in Client misusing the Service.
  2. 14.2  Misuse of the Service is defined as:
    1.  (a)  to make abusive, defamatory, obscene, offensive, indecent, menacing, disruptive, nuisance or hoax communications using Services provided by Diacom or its Third Party Suppliers or make communications in breach of privacy or any other rights;
    2. (b)  to send, knowingly receive, upload, display, download, use or re-use material which is abusive, defamatory, obscene, offensive, indecent or menacing or in breach of copyright, privacy or any other rights;
    3. (c)  to send and receive data in such a way or in such amount so as to adversely affect the network (or any part of it) which underpins any Service or to adversely affect our other customers or customers of our suppliers;
    4. (d)  for the carrying out of fraud, an unlawful activity or a criminal offence or in away which does not comply with the terms of any legislation;
    5. (e)  in a way that does not comply with any instructions given by us to you under clause 10.2(h);
    6. (f)  to obtain access, through whatever means, to restricted areas of the underlying network; or
    7. (g)  in a way which(in our reasonable opinion)brings our name into disrepute, or which places us in breach of our legal or regulatory obligations.

15. Charges, Payments and Records

  1. 15.1  If Client reports a fault in a Service and We find either that there is not or that you, someone at your premises or a third party (including, without limitation, another network operator, IT Services Company or communications supplier) has caused the fault or the interruption in service, we may charge you for any work we have done to try to find the fault or to repair it.
  2. 15.2  Where you take a product or service on a trial basis for a reduced or zero charge for a fixed period, unless otherwise advised to you in writing, you need to give us notice in writing if you wish to cancel the product or service at the end of the trial. If you fail to give us notice, then we will automatically invoice you for the product or service at the end of the trial for the remainder of the agreed contract term.
  1. 15.3  Where the Agreement provides for Equipment to be delivered by instalments, each separate instalment shall be invoiced and paid for in accordance with the provisions of the Agreement. Each instalment shall be a separate Agreement and no cancellation or termination of any one Agreement relating to an instalment shall entitle the Client to repudiate or cancel any other Agreement or instalment.
  2. 15.4  The Client shall make all payments due under the Agreement in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by Us to the Client.
  3. 15.5  Blank.
  4. 15.6  Where We owe you any monies, You agree that We may offset this against any monies Youmay owe us before We make any payment to You.
  5. 15.7  You authorise contract price increases of 1% above RPI inflation at the time of the contractanniversary date with 30 (Thirty) Days notice of intention.
  6. 15.8  You authorise licensing, rental or subscription price increases that may be increased at any time byThird Party Suppliers with thirty days (30) days notice of intention.
  7. 15.9  The Client shall pay Diacom in accordance with the Services Agreement, for the Services providedby Diacom in accordance with these Terms and Conditions. L
  8. 15.10  You must pay the charges for the Services according to the applicable Tariff(s). This applies whetheryou or someone else use the Services and whether the Services are used with your full knowledgeand consent or otherwise.
  9. 15.11  All sums payable by either Party pursuant to this Agreement are exclusive of any value added orother tax or other taxes on profit, for which that Party shall be additionally liable.
  10. 15.12  All payments required to be made pursuant to the Agreement by either Party shall be made within fourteen (14) days of date of the relevant invoice in British Pounds Sterling in cleared funds to Our nominated Bank or as Diacom may from time to time nominate by direct debit and these are thecredit terms which will apply to this Agreement unless we have agreed other- wise in writing.
  11. 15.13  For Project work our standard credit terms are fifty percent (50%) deposit of the estimated cost paid within Seven (7) days of invoice in advance of commencement of the project with the balance of project costs and sundry items in relation to the Project being due on completion ofthe Deliverables.
  12. 15.14  Payment for Services will be made monthly across the minimum term of the Agreement andsubsequent years unless otherwise stated by Us.
  13. 15.15  The first payment will be made upon invoice, with subsequent payments on or about the 28th ofeach calendar month thereafter.
  14. 15.16  Diacom will render monthly in advance invoices for their Services to the Client on or about the 1stof each calendar month until the end of the Service Agreement.
  15. 15.17  Not precluding these clauses 15 we may ask you for a payment in advance;

(a) before payment would normally be due, which you shall pay in accordance with clause 15.10. This advance payment will not be more than our best estimate of your following month’s invoice. Should your advance payment exceed your actual invoice then any surplus will be credited to your account to be offset against subsequent invoices, should there be no further invoices and your account is not in debit then we will refund to you any surplus after deducting any cancellation or termination charges.

t: 01332 404 202 email: info@diacomnetworks.co.uk Digitally Applied Communications

  1. (b)  We may ask for a deposit at any time, as security for payment of your invoices if it is reasonable for us to do so, which you shall pay in accordance with paragraph 15.10. Our procedures for deposits will be explained to you at the relevant time.
  2. (c)  We will ask for a deposit on Project work which will be paid before commencement of the project.
  3. 15.18  Diacom reserve the right to make a nominal charge of £5 per invoice for the following: (a) PaperItemisedBilling(electronic billing is provided as standard)(b) If you do not pay by Direct Debit
  4. 15.19  Project Quotations and Agreements and Orders are estimates and exclude sundry items or other costs that may be incurred as notified to you during the project.
  5. 15.20  For any large projects either conducted onsite or remotely outside of the scope of the Services Agreement, an additional Sales Order will be provided and require an authorised signatory to complete and return to Diacom.
  6. 15.21  Where Diacom charge for daily fee rates for each individual person the fee payable is calculated on the basis of an eight-hour day, worked during Business Hours.
  7. 15.22  Where work is carried outside of Business Hours Diacom will be entitled to charge an overtime rate of 150% of the daily fee on a pro-rata basis.
  8. 15.23  Although we try to maintain our billing systems to be as accurate as possible, we reserve the right to include any licensing or services charges incurred but not invoiced up to a period of 12 months after the service or license has been supplied.
  9. 15.24  To ensure that faults can be resolved without delay you preauthorise and agree to pay us costs that we may incur on material including but not limited to equipment or software to resolve hardware or software failures. This preauthorisation and agreement to pay will be to the value specified in your Services Agreement. If no figure is entered or instruction explicitly stated, we will assume that We are authorised to spend, and You agree to pay up to £500 +VAT.
  10. 15.25  Pre-authorised items include but are not limited to;
    1. (a)  Server and storage Hardware (Hard drives, RAID controllers, batteries, motherboards etc)
    2. (b)  Network switches
    3. (c)  Routers
    4. (d)  UPS batteries
    5. (e)  Wireless access points(if there is no other way of accessing the internet)
  11. 15.26  Additional Equipment or Sales Orders require a 50% deposit payment term upon invoice unless otherwise stated.
  12. 15.27  It is the responsibility of the Client to ensure prompt payment of invoices to avoid delays in the Delivery of Equipment or Services
  13. 15.28  Where any payment pursuant to this Agreement is required to be made on a day on which is not a Business Day, it will be made on the previous Business Day.
  14. 15.29  Without prejudice to any other right or remedy that it may have, if the Client fails to pay Diacom any sum due under this agreement on the due date:
  1. (a)  the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
  2. (b)  Interest under this clause will accrue from the Due Date at 3% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is at or below 0%; and
  3. (c)  Diacom may suspend part or all of the Works until payment has been made in full.

15.30 Each Party shall:

  1. (a)  keep, or procure that there are kept, such records and books of account as are necessary to enable the amount of any sums payable by it pursuant to this Agreement to be accurately calculated;
  2. (b)  at the reasonable request of the other Party, allow the other Party or its agent to inspect those records and books of account and, to the extent that they relate to the calculation of those sums, to take copies of them;

16. DataProtection

  1. 16.1  The Parties will comply with all applicable requirements of Data Protection Legislation.
  2. 16.2  The substantive terms of these conditions including this clause is in addition to, and does not relieve,remove or replace, a party’s obligations or rights under the Data Protection Legislation.
  3. 16.3  The Parties acknowledge that data subjects have enforceable rights and effective legal remedieswith regard to the data processed within the Services Agreement.
  4. 16.4  The Parties acknowledge that they may be subject to investigative and corrective powers of supervisory authorities if they fail to meet its obligations which may lead to fines, penalties and other actions.
  5. 16.5  In addition to the terms of this Clause 16, the terms of the Privacy Notice published and updated from time to time of Diacom shall also apply.

17. Data Protection as Controller

  1. 17.1  The Parties acknowledge that for the purposes of Contractual Obligation Diacom will be Controller of Personal Data related to the Clients Employees, Agents and others that We may need to contact in order to carry out our duties under this clause.
  2. 17.2  The Parties acknowledge that We may from time to time rely on Legitimate Interest to communicate with Data Subjects of the Client if such communication falls outside the scope of Clause 15.5
  3. 17.3  The Personal Data elements held by Diacom for the purposes of Clause 15.5 and 15.6 will be:(a) Full Name
    (b) Email Address
    (c) Telephone Numbers including mobiles that may not belong to Client (d) Work Address
  4. 17.4  If additional Personal Data Elements are obtained, We will inform You.

17.5 Client accepts that it has read and understood Our Privacy Policy for the Purposes of these Terms and those contained in the Services Agreement.

18. Data Protection as Processor

  1. 18.1  The Parties acknowledge that for the purposes of the Data Protection Legislation, Client is the Controller and has appointed Diacom as a Processor to fulfil the Services outlined in the Services Agreement.
  2. 18.2  The Parties acknowledge that these Terms form part of the Services Agreement and will act as a Third Party Processing Agreement.
  3. 18.3  The Personal Data Elements that will be processed will be:(a) Names;
    (b) Addresses;
    (c) Email addresses;
    (d) Telephone numbers;
    (e) Bank details;
    (f) Financial information;
    (g) Sensitive personal data;
    (h) Detailed information concerning confidential legal matters (i) Confidential Data
  4. 18.4  The categories of data subject whose data will be processed in accordance with these Terms and Conditions subject to amendment to the Service Agreement will include:
    1. (a)  Employees;
    2. (b)  Former employees;
    3. (c)  Consultants;
    4. (d)  Suppliers&processors and their employees;
    5. (e)  Employee emergency contacts;
    6. (f)  Third parties connected to legal transactions or disputes;
    7. (g)  Clients;
    8. (h)  FormerClients;
    9. (i)  Potential Clients who may have provided the personal data to Client directly or through thirdparties and will have been provided with appropriate data protection information where this is required for lawful transfer.
  5. 18.5  Without prejudice to the generality of this Clause 18, Client warrants it has all necessary appropriate legal basis including but not limited to consents and notices in place to enable lawful transfer and processing of the personal data to Diacom for the duration and purposes of the Services Agreement.
  6. 18.6  Client will undertake a suitable Retention Policy and Procedure and ensure that it instructs Diacom either on the Services Agreement or in writing as to any roles and responsibilities of Diacom in upholding these Policies and Procedures.
  7. 18.7  Client requires and acknowledges that Diacom will not enact any Retention Policy on behalf of Client unless instructed to in the Services Agreement.

t: 01332 404 202 email: info@diacomnetworks.co.uk Digitally Applied Communications

  1. 18.8  Client warrants it has provided appropriate safeguards in relation to the transfer of personal data to Diacom.
  2. 18.9  Client warrants that data processed is accurate.
  3. 18.10  By signing the Service Agreement Client is acknowledged as providing written instruction to Diacomto process Personal Data on the basis of this Clause 18
  4. 18.11  The nature and purpose of the Processing by Diacom will be the provision of IT Services asdescribed in the Services Agreement.
  5. 18.12  The duration of the Processing will commence from the date of Services Agreement to thetermination of the Services Agreement or following Transition of Services and return or deletion of Client data and Confidential Information from Our systems no later than 6 (six) months of the termination.
  6. 18.13  Diacom shall, in relation to any personal data processed in connection with the performance of its obligations under these Terms and Conditions and Service Agreement undertake;
    1. (a)  To process personal data only on these Terms and Conditions and documented Service Agreement unless Diacom is required by Applicable Laws to otherwise process that personal data;
    2. (b)  Where Diacom is relying on the laws of a member of the European Union or European Union Law as the basis for processing personal data, Diacom shall promptly notify Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Diacom from so notifying Client;
    3. (c)  ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
    4. (d)  not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained
    5. (e)  not use any sub processor not explicitly stated within the Services Agreement without notification and written permission of Client before the commencement of using the sub processor for any processing of Client Data;
    6. (f)  Employ and retain a Data Protection Officer;
    7. (g)  Appoint in writing are presentative within the European Union iff required
    8. (h)  Co-operate with Data Protection Authorities and other Supervisory Authorities
  7. 18.14  Diacom has in place appropriate technical and organisational measures, that Client acknowledges and warrants they have reviewed and approved, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
  8. 18.15  Diacom will comply with reasonable instructions notified to it in advance by Client with respect to the processing of the personal data;(a) InformClientwithoutunduedelayonbecomingawareofanyactivitythatmayinfringeany Applicable Laws;
  1. (b)  AssistClientinmeetingitsobligationsinrelationinprovidingsubjectaccessandallowing data subjects to exercise their rights;
  2. (c)  Assist Client in meeting its obligations in relation to data protection impact assessments;
  3. (d)  assist Client in audits and inspections asset out in Clause19
  4. (e)  Under clause 18.12, delete or return personal data and copies thereof to Client on termination of the Service Agreement unless required by Applicable Law to store the personal data; and
  5. (f)  maintain complete and accurate records and information to demonstrate it’s compliance with this clause 18 and immediately inform Client if, in the opinion of Diacom, an instruction infringes the Data Protection Legislation.
  1. 18.16  Each Party undertakes to will notify the other Party without undue delay of an actual or suspected security breach, compromise, act, omission, error or theft leading to;
    1. (a)  accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data Diacom Process under Your instruction;
    2. (b)  material loss or damage, including damage to the reputation of Us, which for the avoidance of doubt shall be deemed to be material in every instance in which it occurs shall;
      1. promptly notify Us of the circumstances and scope of such an event once known;
      2. dedicate appropriate resources to investigating;
      3. take appropriate steps to mitigate the scope of such an event and thedamage, loss, and other negative consequence thereof;
      4. reasonably liaise with each Party and Supervisory Authorities in resolution ofthe incident
  2. 18.17  Client will undertake to enter into a separate Agreement with its Data Subjects for each separate project relating to the processing of Data.
  3. 18.18  Either party may, at any time on not less than 30 days’ notice, revise this Clause 18 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Services Agreement).

19. Information and Audit

  1. 19.1  For the term of this agreement, Diacom shall maintain full and accurate records, in an agreed form, of all charges, prices, costs and expenses associated with and invoiced in respect of the Services and all processing of data under this agreement.
  2. 19.2  Diacom agrees that Client, its regulator (for example the SRA, FSA) or any successor organisation and/or its agents shall be entitled throughout the continuance of this Agreement on reasonable advance written notice, allow Client, any designated auditors of, or other advisers to, Client Name, and any regulators of Client to access any Diacom premises, personnel, relevant records and systems used by Diacom in the provision of the Services as may be reasonably required to verify that the Services are being provided in accordance with the Service Agreement, the adequacy of Diacom’s financial standing and the upholding of its obligations under Clause 17;
  3. 19.3  Client shall use its reasonable endeavours to ensure that the conduct of each audit does not unreasonably disrupt Diacom or delay the provision of any of the Services by Diacom.
  1. 19.4  Subject to Client’s obligations of confidentiality, Diacom shall provide the Client and others described in this Clause 19 all reasonable co-operation, access and assistance in relation to each audit.
  2. 19.5  The parties shall bear their own costs and expenses incurred in respect of compliance with their obligations under this clause.

20. Call monitoring

20.1 We may occasionally monitor and record calls made to or by us relating to customer services and telemarketing calls made by us, for the purpose of training and improving customer care services, including complaint handling.

21. Confidentiality

  1. 21.1  Each Party undertakes that, except as provided within this Clause 21 or as authorised in writing by the other Party, it shall, at all times during the continuance of this Agreement and for 5 (five) years after its termination:
    1. (a)  keep confidential all Confidential Information;
    2. (b)  not disclose any Confidential Information to any other person;
    3. (c)  not use any Confidential Information for any purpose other than as contemplated by andsubject to these Terms and Conditions and of the Service Agreement;
    4. (d)  not make any copies of, record in any way or part with possession of any ConfidentialInformation; and
    5. (e)  ensure that none of its directors, officers, employees, agents or advisers does any actwhich, if done by that Party, would be a breach of the provisions of this Clause 21
  2. 21.2  Either Party may disclose any Confidential Information to:(a) any sub-contractor or supplier of that Party;
    (b) any governmental or other authority or regulatory body; or
    (c) any employee or officer of that Party or of any of the aforementioned persons;
    (d)such extent only as is necessary for the purposes contemplated by these Terms andConditions and Services Agreement, or as required by law, and in each case subject to that Party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 19.2(b) above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

(e) use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Service Agreement, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.

  1. 21.3  The provisions of this Clause 21 shall continue in force in accordance with their terms, notwithstanding the termination of the Services Agreement for any reason.
  2. 21.4  Notwithstanding that Diacom will not be handling client information directly, it undertakes to keep confidential any client information which it may access, or which may be under its control and further to ensure that this obligation is met by others if such information is forwarded and this duty will remain without time limit.
  3. 21.5  This clause shall be known as the “Jelly Bean Clause” and is used within our compliance training. If Client fails to reference this clause at time of Agreement then Client will provide author of this Agreement a packet of Jelly Beans or other confectionary chosen from time to time.

22. Service Changes or Interruptions

  1. 22.1  Diacom retains the right to interrupt the Services without penalty for the following reasons:(a) interrupt the Services for operational reasons, technical reasons or because of an emergency;(b) give you instructions that we believe are necessary for health or safety or to maintain the quality of the Services that we supply to You or to other Clients;(c) Change the configuration or technical specification of the Services for Operational Reasons
  2. 22.2  We cannot guarantee and do not warrant that the Services will be free of interruptions or will be fault-free and we will not be liable for any loss or damages should the Services be interrupted from time to time.
  3. 22.3  You accept that there may also be degradations of the quality of the Service from time to time due to matters beyond our control and that we will not be liable for any loss or damages should the quality of the Service we provide be affected by such matters.

23. Force Majeure

23.1 Force Majeure Event means any circumstance not within a Party’s reasonable control including, without limitation:

  1. (a)  acts of God, flood, drought, earthquake or other natural disaster;
  2. (b)  epidemic or pandemic;
  3. (c)  terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war,armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
  4. (d)  nuclear, chemical or biological contamination or sonic boom;
  5. (e)  any law or any action taken by a government or public authority, including withoutlimitation imposing an export or import restriction, quota or prohibition [or failing to granta necessary licence or consent];
  6. (f)  collapse of buildings, fire, explosion or accident;
  1. (g)  any labour or trade dispute, strikes, industrial action or lockouts(other than in each case by the party seeking to rely on this clause, or companies in the same group as that party;
  2. (h)  non-performance by Third Parties as described in Clause 12 and 13
  3. (i)  Non-performance of subcontractors (other than by companies in the same group as theparty seeking to rely on this clause); and
  4. (j)  interruption or failure of utility service.
  1. 23.2  If a party is prevented, hindered or delayed in or from performing any of its obligations under these Terms and Conditions and Service Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of these Terms and Conditions and Service Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
  2. 23.3  The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
  3. 23.4  The Affected Party shall:
    1. (a)  as soon as reasonably practicable after the start of the Force Majeure Event notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
    2. (b)  use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
  4. 23.5  If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 3 (three) months the party not affected by the Force Majeure Event may terminate the Services Agreement by giving 1 (one) months written notice to the Affected Party.

24. Limitations of Liability

  1. 24.1  Diacom shall maintain in force during the period of this Agreement adequate and appropriate insurance cover with reputable insurers acceptable to the Client in respect.
  2. 24.2  Throughout the life of the Service Agreement Diacom will purchase and maintain professional indemnity insurance at a minimum level of cover of £5,000,000
  3. 24.3  Diacom shall promptly provide to the Customer any evidence, documents or materials reasonably requested by the Customer in relation to such insurance cover.
  4. 24.4  The limits and exclusions in this clause 24 reflect the insurance cover We have been able to arrangeand the Client is responsible for making its own arrangements for the insurance of any excess loss.
  5. 24.5  Nothing in these Terms and Conditions or the Services Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
  1. (a)  death or personal injury caused by negligence;
  2. (b)  fraud or fraudulent misrepresentation; and
  3. (c)  breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (titleand quiet possession).
  4. 24.6  Except as expressly set out in these Terms and Conditions or within the Service Agreement, all conditions, warranties, terms, undertakings and obligations implied by statute, common law, custom, trade usage or otherwise are hereby excluded to the maximum extent permitted by law.
  5. 24.7  Diacom agree to indemnify Client in respect of losses, including third party claims against Client, arising as a result of the failure of Diacom to perform properly their obligations under these Terms and Conditions and Services Agreement or acts of negligence on their part or the part of their employees.
  6. 24.8  Subject to above clause 22.3 the Supplier’s total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
  7. 24.9  In clause above the meaning will be:(a) cap. The cap is the greater of 80% of the total charges in the contract year in which the breaches occurred.(b) contract year. A contract year means a 12-month period commencing with the date of the Service Agreement or any Anniversary of it;(c) total charges. The total charges means all sums paid by the Client and all sums payable under the Services Agreement in respect of Services actually supplied by Us, whether or not invoiced to the Client excluding any Third Party charges invoiced by Us on Behalf of the Third Party; and

    (d) total liability. Our total liability includes liability in contract, tort (including negligence),breach of statutory duty, or otherwise, arising under or in connection with this agreement. warrants to the Client that the Services will be provided using reasonable skill and care.

  8. 24.10  Client warrants that no computer system can ever be 100% secure from attack or compromise and that it has a duty of care to protect the Services from such.
  9. 24.11  Diacom does not warrant that the Client’s systems will be fully secure from third-party vulnerabilities following use of any of its Services.
  10. 24.12  Any act or omission of any Third Party Supplier, subsidiary, contractor or agent involved in the performance of the Service Agreement shall be considered in relation to the Service Agreement as an act or omission of that party.
  11. 24.13  Diacom will not be liable for non-performance or any act or omission of a Third Party Supplier covered in Clause 12 or 13.
  12. 24.14  Client shall maintain in force during the period of the Service Agreement adequate and appropriate insurance cover, including cyber insurance, with reputable insurers acceptable to Us in respect.
  13. 24.15  Diacom shall not be liable for any loss or damage resulting from the breach by the Client of its obligations.
  14. 24.16  Our Services are provided on the basis of its current knowledge and understanding of best industry practice and know-how and do not imply or warrant that we are aware of all threats.
  15. 24.17  You shall indemnify Us against all liabilities, costs, expenses, damages and losses suffered or incurred in connection with the Services or any breach of this Agreement in excess of Clause 22.5.

24.18 The types of wholly excluded loss referenced in Clause 24.16 are as follows:

  1. (a)  Loss of profits.
  2. (b)  Loss of sales or business.
  3. (c)  Loss of agreements or contracts.
  4. (d)  Loss of anticipated savings including interest
  5. (e)  Loss of use or corruption of software, data or information.
  6. (f)  Loss of or damage to goodwill, reputation.
  7. (g)  Indirect or consequential loss.
  8. (h)  Penalties and Fines.
  9. (i)  Reasonable professional costs and expenses.

25. Nature of the Services Agreement

  1. 25.1  Each Party shall be entitled to perform any of the obligations undertaken by it and to exercise any rights granted to it under these Terms and Conditions and Service Agreement through any other member of its group, provided that any act or omission of that other member shall, for all the purposes of these Terms and Conditions, be deemed to be the act or omission of the Party in question.
  2. 25.2  Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
  3. 25.3  Diacom may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
  4. 25.4  These Terms and Conditions form part of the Services Agreement and contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
  5. 25.5  Each Party acknowledges that, in entering into the Service Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in these Terms and Conditions and the Service Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
  6. 25.6  No failure or delay by either Party in exercising any of its rights under these Terms and Conditions and Service Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of these Terms and Conditions and Service Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
  7. 25.7  A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

26. Dispute

  1. 26.1  The rights and remedies provided under these Terms and Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
  2. 26.2  If there is an inconsistency between any of the provisions of these Terms and Conditions and the Service Agreement, the provisions of the Service Agreement shall prevail.
  1. 26.3  If any provision or part-provision of these Terms and Conditions or Service Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms and Conditions or the Service Agreement.
  2. 26.4  If any provision or part-provision of this agreement is deemed deleted under Clause 24.3 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  3. 26.5  In the event of any dispute of whatever nature arising out of any aspect of these Terms and Conditions and Service Agreement, the Parties hereby agree to submit the dispute to mediation, expert determination or such other recognised alternative dispute resolution process as they shall agree is appropriate.
  4. 26.6  Within 14 days of one party informing the other that they wish a dispute to be resolved in this manner, the parties shall each provide the name of one suitable third party neutral to conduct or determine the dispute resolution process as appropriate.
  5. 26.7  If within a further 7 days the parties cannot select from these a mutually acceptable neutral then the decision shall be referred to the Civil Mediation Council for an appointment. Any such ADR process shall be conducted in accordance with the rules, guidance and code of conduct of the Academy of Experts. The parties agree to be bound by the outcome of the ADR process determined upon under this clause.

27. Law and Jurisdiction

  1. 27.1  These Terms and Conditions and Service Agreement shall be governed by the laws of England and Wales.
  2. 27.2  In the event that any dispute is not settled under Clause 24 between the Parties relating to these Terms and Conditions and the Service Agreement it shall fall within the jurisdiction of the courts of England and Wales.
  3. 27.3  If any provision of these Terms and Conditions or Service Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, these Terms and Conditions and Service Agreement shall continue to be valid as to their other provisions and the remainder of the affected provision.

28. Counterparts

  1. 28.1  The Service Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
  2. 28.2  Transmission of the executed signature page of a counterpart of the Service Agreement by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of the Service Agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
  3. 28.3  No counterpart shall be effective until each party has executed at least one counterpart.

29. Relationship of the Parties

  1. 29.1  Nothing in these Terms and Conditions or Service Agreement shall constitute, or be deemed to constitute, a partnership between the Parties nor, except as expressly provided, shall it constitute, or be deemed to constitute an agency of any other Party for any purpose.
  2. 29.2  Subject to any express provisions to the contrary in these Terms and Conditions and Service Agreement, Diacom shall have no right or authority to and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of Client or bind Client in any way.

30. Costs

30.1 Subject to any provisions to the contrary each Party to these Terms and Conditions and Service Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Services Agreement.

31. Copyright

  1. 31.1  The operating manuals and other documentation provided by Diacom under these Terms and Conditions and Service Agreement is the copyright of Diacom or the manufacturer, and the Client shall take all such steps as shall be necessary to protect such copyright and any confidential information in such documentation.
  2. 31.2  This document is reproduced under License from Fifth Square Ltd. No part of this publication may be reproduced, transcribed, adapted or used for commercial purposes without the express consent of Fifth Square Ltd.