ONLINE TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATIONS
Unless the context otherwise requires, the following expressions shall have the meanings respectively assigned to them below:
“Agreement” shall mean the Agreement for the Dialog SmartLife Solution executed between the DBN and Customer, including, these Online Terms and Conditions, Solution proposal, Schedules, Annexures thereto 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;
“Installation” shall mean the complete assembly of the Solution at the Site;
“Party” shall mean and refer DBN and Customer individually;
“Parties” shall mean and refer DBN and Customer collectively;
“Solution” shall mean the Solution in terms of Smart Home morefully specified in Schedule 1 of the Agreement, which shall include the hardware and/or the software provided hereunder;
“Service/s” shall mean the supply, delivery, installation, support and maintenance and subsequent installation of the Solution;
“Site” shall mean the location owned by the Customer whereby single or multiple Units shall include hardware/software and/or Solution installed morefully provided in Schedule 1 of the Agreement;
“Unit” a portion of the Site designated for separate ownership which shall include hardware/software and/or Solution installed;
“Working Day” shall mean Monday to Friday exclusive of any public or mercantile holidays in Sri Lanka;
“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 titles of these conditions are for convenience of reference only and shall not be deemed to be part of the Agreement or in any way alter the interpretation or construction thereof;
1.3. The Schedules to the Agreement shall constitute an integral part hereof;
1.4. No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of the Agreement or any part of it.
2. SCOPE OF THE AGREEMENT
2.1 The scope of the Agreement shall be to install and maintain the Solution within the said Site to provide/enhance certain facilities, morefully provided in Schedule 1 of the Agreement for the non-exclusive use of the occupants, visitors and customers of the said Site/Customer.
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 the Agreement, the Customer may terminate the Agreement and Services morefully provided herein.
3.1. DBN shall together with its service partners reach out to the Customer in order to schedule a date for a Site survey to be performed.
3.2. The duration of the Site survey shall depend on the size and complexity of each project. However, DBN shall endeavour to limit the duration of each survey within the number of Days specified in Schedule 1 of the Agreement.
3.3. Subsequent to the placement of the order for the Solution by the Customer, the Solution and the related devices shall be delivered to the Site within Fourteen to Forty-Two (14 – 42) Days from the date of said order.
4. OBLIGATIONS OF THE CUSTOMER
The Customer shall;
4.1. permit and allocate space and necessary infrastructure within the said Site for DBN and its partners to install the Solution which includes, related equipment and cabling.
4.2. acquire all required approvals from the relevant authorities to install the Solution
4.3. provide necessary number of power outlets and electrical fittings to installing devices required for the Solution such as neutral wiring, deep sunk boxes etc.
4.4. obtain and maintain Dialog broadband facilities required for all the devices utilising the Solution;
4.5. subsequent to installation and conducting of test run of the Solution, accept the Solution deployed at the Site/Unit and sign the UAT if required;
4.6. ensure to have alterative access controls for essential parts of Site such as doors, lights or any others as deemed necessary by Customer;
4.7. inform any concern relating to installation of the Solution to DBN within Three (03) days of the installation;
4.8. be solely responsible for the use of the smart devices and service and adhere to the terms of Services morefully provided herein;
4.9. be solely responsible for the confidentiality of the login usernames and passwords of Solution;
4.10. understand that there can be cosmetic ware on the Site due to Solution installation and servicing to the Site;
5. TECHNICAL CONDITIONS
Customer agrees and acknowledges that;
5.1. for the purpose of dimmable light functionality, Customer shall provide filament lamps and/or supported lamps required;
5.2. power consumption of each light shall be minimum 20Watt and a maximum 300Watt for a single gang;
5.3. sunk box depth shall be greater than or equal to 1.5 inches for each switch;
5.4. if the Solution requires/specifies, have neutral wiring in the electrical infrastructure;
5.5. the Solution has an end of life and shall require in certain cases, to use an alternative solution to maintain the Solution and continue with day to day operations;
5.6. Dialog broadband connection is mandatory to maintain the Solution and provide agreed Services with ethernet or Wi-Fi as required;
5.7. in the event the Dialog broadband connection is terminated, DBN reserves the right to terminate the Agreement immediately.
6. OBLIGATIONS OF DBN
6.1 through its service partner provide the Services related to the Solution in the said Site in accordance with the standards as specified by DBN. DBN shall not use the said Business Activity for any purpose other than as aforesaid;
6.2 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 the Agreement;
6.3 ensure to cause minimum damage to the said Site, as reasonably possible, while installing the said Solution and other related equipment;
6.4 indemnify the Customer and hold the Customer harmless against any loss or damage suffered by the Customer, directly attributable to any fault, wilful or gross negligent acts or omissions of DBN and /or its representatives, agents, employees and any third-party providers;
6.5 make commercially reasonable efforts to update the devices and mobile app from time to time in co-operation with DBN service partners.
7.1. The Solution and the Service costs shall be fully paid by the Customer as per Schedule 02 payment terms specified in the Agreement .The Customer agrees and acknowledges that the payment for the Solution shall be a onetime payment and that there shall be no payment plan for the Solution, unless in the event where a special promotion is intimated to Customer by DBN.
7.2. Customer shall be responsible for the payment of any taxes related to the Services, and Customer shall pay DBN for the Service without any reduction of taxes.
7.3. Customer shall be liable to pay for the transportation costs as may be charged according to each requirement subject to the Agreement.
7.4. Customer agrees and acknowledges that upon installation of the devices, DBN shall not make any cash refunds for any reason whatsoever.
7.5. DBN shall invoice Customer for the Services provided on a monthly basis and Customer shall settle such invoices within Thirty (30) days from the date of the invoice.
7.6. Any dispute in such invoices shall be brought to DBN’s notice within Five (05) Working Days from the date of the invoice. Wherein no dispute is raised within such period the invoice shall be deemed accepted by Customer and no revision/amendment shall be affected, thereafter.
7.7. In the event of default of payment by the Customer, DBN shall immediately terminate the Services provided until all defaulted sums are paid in full to DBN.
8.1. A Service warranty of Two (02) year shall be provided to the Customer by DBN and shall be inclusive of the devices and the Solution.
8.2. DBN and its Service partners reserves the sole discretion in replacing the devices according to device availability.
8.3. In the event the Customer requires to maintain call centre and technical on-premise support subsequent to the expiry of the warranty period, a monthly or annual maintenance fee specified in the Solution proposal (“Maintenance Plan”) shall be charged, as morefully specified in Schedule 3 of the Agreement.
8.4. In the event the Customer is not a party to a Maintenance Plan the Customer shall not have access to call centre support. Any maintenance requirements shall be charged per visit as specified in the Solution proposal)
8.5. In the event a Customer is a party to a Maintenance Plan provisions specified in Schedule 3 of the Agreement as managed services shall apply.
8.6. The maintenance fees may be changed with prior notice to the Customer.
The Agreement shall be effective from the Effective Date specified in the Agreement hereof and remain valid for a period specified in Schedule 1 of the Agreement. After expiry of the aforesaid period, the Agreement shall automatically be renewed for further period specified in Schedule 1 of the Agreement “Renewal Term” until terminated by either Party.
10.1 Either Party shall be entitled to terminate the Agreement, by written notice to the other Party, if the other Party is in breach of any of the provisions of the 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.
10.2 DBN may without prejudice to any other rights herein, may immediately terminate the 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.
10.3. The Customer shall terminate the Agreement by giving Thirty (30) days’ notice to DBN.
10.4. DBN may at its discretion terminate the Agreement at any time with Thirty (30) Days’ prior written notice to the Customer.
10.5. DBN may immediately terminate the Agreement in the event of a material breach by the Customer.
10.6. The Customer agrees and acknowledges that no refund payment shall be made upon the termination of the Agreement.
11. LIMITATION OF LIABILITY
11.1. 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 THE 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.
11.2. THE MAXIMUM LIABILITY OF DBN SUBJECT TO THIS AGREEMENT SHALL BE LIMITED TO SRI LANKAN RUPEES ONE HUNDRED THOUSAND ONLY.
11.3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DBN MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS ABOUT THE PRODUCTS, DEVICES AND SERVICES SUPPLIED HEREUNDER.
12.1. 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 Services hereunder and the Customer shall bear all expenses including but not limited to expenses for litigation, in any such claim.
12.2. This clause shall survive early termination or expiration of the Agreement.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. It is expressly agreed and acknowledged by the Customer that at no point in the Agreement the Customer shall be the owner of the Intellectual Property related to the Solution and/or Services. The Agreement at no point assigns any Intellectual Property rights of the Solution and/or Services to the Customer.
13.2. Neither Party shall use the other Party’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. Each Party shall comply with the other’s requests as to the use of the other’s trademarks, service marks, logos and/or other brands and shall refrain from taking any action that diminishes the value of such trademark, service mark and or other brands in any manner whatsoever.
14.1. Each Party to the 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 the 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 the 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.
14.2. Each Party to the 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 the 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 the 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.
14.3. The provisions set out in Clause shall remain in force for an unlimited period of time notwithstanding the expiration or sooner determination of the 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 the Agreement or any of the transactions contemplated in it without the prior written consent of DBN and such consent will not be unreasonably withheld.
16. GOVERNING LAW
The Agreement shall be governed and construed in accordance with the laws of Sri Lanka.
17. SETTLEMENT OF DISPUTES
If any dispute or difference whatsoever arises between the Parties concerning matters relating to the 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 the 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 morefully provided in the Agreement.
19. The Customer 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 DB N from time to time.
20. 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 the Agreement and no action taken by the Parties pursuant to the 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.
Neither Party shall assign the provisions of the Agreement or rights, duties and/or responsibilities hereunder, without the express prior consent in writing of the other Party hereof.
23. ENTIRE AGREEMENT
The Agreement records the entire Agreement, 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.