TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATIONS
Unless the context otherwise requires, the following expressions shall have the meanings respectively assigned to them below:
1. “Agreement” - shall mean this Agreement executed between the DBN and Customer, including, the Dialog Home Broadband Beyond Connectivity Contract Form and includes any subsequent amendments thereto entered into between DBN and the Customer, and shall supersede any previous Agreement, understanding, representations written or oral concerning the subject matter;
2. “Day” -shall mean calendar day;
3. DBN - shall mean Dialog Broadband Networks (Private) Limited a Company duly incorporated under the laws of Sri Lanka and bearing Registration Number PV 261 and having its registered office at No.475, Union Place, Colombo 02, Sri Lanka and shall include its successors in office and permitted assigns
4. “Installation” - shall mean the complete assembly of the Solution at the Site;
5. “Party” - shall mean either DBN or the Customer individually;
6. “Parties” - shall mean DBN and the Customer both collectively;
7. “Solution” - shall mean the Solution specified in the Dialog Home Broadband Beyond Connectivity Contract Form, which shall include the Hardware and/or the Software provided hereunder;
8. “Service/s” - shall mean the supply, installation integration, testing & commissioning, maintenance and providing training of the Solution;
9. “Site” - shall mean the location/ Customer Premises where Hardware/Software and/or Solution shall be installed;
10. “Working Day” - shall mean Monday to Friday exclusive of any public or mercantile holidays in Sri Lanka
11. “Year” - shall mean a calendar year;
1.1. Words importing the singular shall also include the plural and vice-versa where the context so requires.
1.2. The title of these conditions is for convenience of reference only and shall not be deemed to be part of this Agreement or in any way alter the interpretation or construction thereof.
1.3. The Dialog Home Broadband Beyond Connectivity Contract Form shall constitute an integral part hereof.
2. SCOPE OF THE AGREEMENT
2.1 The scope of this Agreement shall be to supply, delivery, installation, integration, testing & commissioning, maintenance and providing training with respect to the Solution within the said Site.
2.2 DBN shall with prior notice to the Customer amend the terms of the Services from time to time. In the event the Customer is not in agreement to such amendments, subject to the terms and conditions of this Agreement, the Customer may exit/terminate this Agreement and Services morefully provided herein.
2.3 In the event of any discrepancy in the English, Sinhala and Tamil texts in the Dialog Home Broadband Beyond Connectivity Contract Form, the English text shall prevail.
This Agreement shall be effective from the date of full payment by the Customer and remain valid for a period of Two (02) years commencing from the said date, unless terminated by the Parties as morefully provided in this Agreement.
4. OBLIGATIONS OF THE CUSTOMER
The Customer shall,
4.1. permit and allocate space within the said Site to DBN and its partners to install the Solution which includes, related equipment and duly insulated cable routes to Solution equipment from necessary provisioning.
4.2. provide necessary number of power outlets and electrical fittings to installing devices required for the Solution;
4.3. obtain and maintain Dialog broadband connectivity or the 4G LTE connection during the Term for the utilization of the Solution;
4.4. subsequent to installation and conducting of test run of the Solution, accept the Solution deployed at the Site and sign the UAT if required;
4.5. inform any concern relating to installation of the Solution to DBN within Three (03) days of the installation;
4.6. be solely responsible for the use of the Solution and the Services and adhere to the terms of Services morefully provided herein;
4.7. be solely responsible for the confidentiality of the login usernames and passwords of Solution;
5. OBLIGATIONS OF DBN
5.1 provide the Services related to the Solution in the said Site in accordance with the standards as specified by DBN;
5.2 ensure that the installation is carried out in accordance with the relevant specifications and to conduct to the satisfaction of the Customer the testing of the Solution upon completion of its installation in accordance with the requirements and the terms and conditions of this Agreement;
5.3 not cause any damage to the said Site while installing the said Solution and other related equipment;
6.1. The Solution (Hardware, Software and Service) cost shall be fully paid by the Customer upon the prior delivery of the Solution. The Customer agrees and acknowledges that there shall be no payment plan for the Solution, unless in the event where a special promotion is intimated to Customer by DBN.
6.2. Customer shall be responsible for the payment of any taxes related to the Services, and Customer shall pay Dialog for the Service without any reduction of taxes.
6.3. Customer will be charged an additional payment if the installation requires any hard drilling (concrete, columns, tiled surfaces) or ditching of the ground.
6.4. Upon installation of the Solution, DBN shall not make any cash refunds for any reason whatsoever.
7.1. The Solution shall be subject to a warranty period of Two (02) years.
7.2. DBN and its Service partners reserves the sole discretion in replacing the devices of the Solution according to device availability.
7.3. In the event of whereby a request for rectifying software errors and/ or settings of the Solution is made by the Customer, which falls out of the scope of aforesaid warranty, the Customer shall be charged separately for such services.
7.4. Above Clause 7.3 is expressly subject to an exclusion of liability on the part of DBN for any loss of data and/or failure to recover any data.
7.5. The warranty shall immediately be null and void in the event the Solution or any part thereof including any accessory of the Solution is/has been connected to unsuitable electricity supply, misused, damaged due to negligence, accident, lightning, voltage fluctuations, subjected to unauthorized modifications and/or repair by unauthorized persons, damage or removal of guarantee seal, illegibility or alteration of the warranty certificate, affected by sea-spray, damaged by animals or insects or acts of God.
7.6. Software, video or audio file formats not being read or installed shall not be interpreted as a defect and shall not be covered under the warranty unless it is embedded as an option in the Solution. DBN shall not be liable for the quality of software used by Customers.
7.7. The Parties agree and acknowledge that this warranty does not cover data losses, hardware & software defect due to virus attacks, spyware, third party software.
7.8. The Parties agree and acknowledge that this warranty shall not be applicable to any customer installed items to the solution such as batteries, jacks/sockets, power adapters, UPS, mouse and keyboard.
7.9. The Parties agree and acknowledge that this warranty shall not be applicable to defects in equipment caused by lightning, any other natural disaster, voltage fluctuations, use of unauthorized services or malpractices.
8.1 DBN may terminate this Agreement, by written notice to the Customer, if the Customer is in breach of any of the provisions of this Agreement and, fails to rectify such breach within Sixty (60) days of receiving written notice of same without prejudice and subject to the obligations, claims and liabilities already accrued at such time of termination.
8.2 DBN may without prejudice to any other rights herein, may immediately terminate this Agreement at the occurrence of any of the following circumstances;
a) if the Customer becomes insolvent or goes into voluntary or compulsory liquidation or passes an effective resolution for winding-up or make an arrangement or composition with its creditors, or if any receiver be appointed on behalf of debenture holders or otherwise.
8.3. DBN may at its discretion terminate this Agreement at any time with thirty (30) Days’ prior written notice to the Customer.
9. LIMITATION OF LIABILITY
9.1. DBN SHALL NOT BE LIABLE FOR LOSS OF BUSINESS, LOSS OF REVENUE, CONSEQUENTIAL OR INCIDENTAL LOSS OR ANY OTHER LOSS TO THE CUSTOMER AS A RESULT OF PROVISION OF/USE OF SOLUTION HEREUNDER, SUSPENSION OF SOLUTION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON WHATSOEVER OR EXERCISE OF ANY RIGHT OF DBN HEREUNDER – EVEN IF DBN IS ADVISED OF THE POSSIBILITY OF SUCH LOSS/DAMAGE.
9.2. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DBN MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS ABOUT THE SOLUTION, ANY ANCILLARY DEVICES, ACCESSORIES AND SERVICES SUPPLIED HEREUNDER.
10.1. The Customer shall keep DBN free, harmless and indemnified against any and all third party claims arising due to the negligence, wilful act or omission of the Customer its employees, customers, visitors or any third party, in the provision of Solution and/or Services hereunder and the Customer shall bear all expenses including but not limited to expenses for litigation, in any such claim.
10.2. This clause shall survive early termination or expiration of this Agreement.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 It is expressly agreed and acknowledged by the Customer that at no point in this Agreement the Customer shall be the owner of the Intellectual Property related to the Solution and/or Services. This Agreement at no point assigns any Intellectual Property rights of the Solution and/or Services to the Customer.
11.2 Customer shall not use the DBN’s trademarks, service marks, logos and/or other brands, if any, in a manner which brings disrepute to the other or its products or Services or portrays the other or its products or Services in a false light. Customer shall refrain from taking any action that diminishes the value of such trademark, service mark and or other brands in any manner whatsoever.
12.1 Each Party to this Agreement shall use its best efforts to keep in strict confidence, and shall bind all of its employees and agents to keep in strict confidence, all commercial and technical information in whatever form acquired by it (whether directly or indirectly) from or concerning any other Party under this Agreement or in connection with the performance of the Agreement (herein after called "Confidential Information"). No Party shall utilize such Confidential Information for any purposes other than those contemplated in this Agreement. Further, no Party shall at any time disclose any Confidential Information to any third party without the prior written consent of the other Party.
12.2 The following information shall be excluded from the foregoing scope of Confidential Information:
a) information which at the time of disclosure is generally available to the public;
b) information which after disclosure becomes generally available to the public through no fault of the receiving Party;
c) information which the Party concerned shall be compelled to divulge if required by Law.
12.3. The provisions set out in Clause shall remain in force for an unlimited period of time notwithstanding the expiration or sooner determination of this Agreement.
The Customer shall not be entitled to make, permit or authorize the making of any press release or public statement or disclosure concerning the contents of this Agreement or any of the transactions contemplated in it without the prior written consent of DBN and such consent will not be unreasonably withheld.
14. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of Sri Lanka.
15. SETTLEMENT OF DISPUTES
If any dispute or difference whatsoever arises between the Parties concerning matters relating to this Agreement or any provision thereof, the Parties herein shall use their best endeavours to resolve the dispute or difference amicably. Any dispute or difference the parties hereto not capable of being resolved amicably as heretofore not exceeding a period of thirty (30) days shall be resolved by litigation/ submitting to the jurisdiction of the competent courts in Sri Lanka.
Any notice or other information required or authorised by this Agreement to be given by either Party to the other may be given by hand with due acknowledgment or sent by registered post, facsimile transmission or comparable means of communication) to the other Party as follows:
Any notice by the Customer to DBN under these terms and conditions shall be in writing and sent to the following address which may be changed and notified from time to time.
Head of ICT Business,
Dialog Broadband Networks (Private) Limited (PV 261)
475, Union Place,
Colombo 02, Sri Lanka.
17. ANTI - BRIBERY AND ANTI - CORRUPTION, NETWORK ACCESS CLAUSES, INFORMATION SECURITY AND DATA PROTECTION
The Company shall adhere to the Anti Bribery and Anti-Corruption clauses, Network Access clauses, Information Security and Data Protection clauses located at https://www.dialog.lk/legal or any other location determined by Customer from time to time
18. FORCE MAJEURE
Neither Party shall be liable for loss caused by failure or delay in the performance, observance or fulfilment of any term, obligation, provision or condition hereof, if such failure or delay arises wholly or in part from any cause or causes reasonably beyond the control and without fault or negligence of each Party where each party has clearly demonstrated that reasonable efforts have been used to avoid such occurrences.
Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute or be deemed to DBN and Customer as a partner, joint venture, association or other co-operative entity of the other and shall not appoint either Party as agent of the other for any purposes whatsoever either in or outside the Territory. Neither shall have the authority or power to bind the other Party’s name or create any liability against the other Party in any way or for any purpose. It is hereby specifically stated that Manufacturer’s role under this Agreement is that of independent contractor and no other.
Neither Party shall assign the provisions of this Agreement or rights, duties and/or responsibilities there under without the prior consent in writing of the other Party hereof.
21. ENTIRE AGREEMENT
This Agreement records the entire agreement between the Parties, and prevails over any earlier agreement, concerning its subject. A variation/modification to the terms hereof shall only be effective if it is in writing and signed by each Party.