DIGGLENET: STANDARD TERMS AND CONDITIONS
PARTIES
1) DIGGLENET LIMITED is a limited company incorporated in England (company number 03906596) with its registered address at 11 Lynn Road, Ely, Cambridgeshire, CB7 4EG, England (“DiggleNet” / “we” / “us”); and
2) You are the CUSTOMER who has engaged DiggleNet to perform Services on behalf of the business that you work for (the “Customer” / “you”).
1. Introduction
1.1. These Terms and Conditions govern the supply of Services to the Customer by DiggleNet, subject only to any additional terms and conditions contained in any Statement of Work agreed in writing between the parties. No other terms or conditions will apply except as provided below.
1.2. THE CUSTOMER HEREBY DECLARES THAT IT HAS ACCEPTED THESE TERMS AND CONDITIONS IN THE KNOWLEDGE THAT THE LIABILITY OF DIGGLENET IS LIMITED AND THAT THE PRICES AND CHARGES PAYABLE FOR SERVICES HAVE BEEN CALCULATED ACCORDINGLY.
2. Definitions and Interpretation
2.1. The definitions and rules of interpretation in this clause apply in these Terms & Conditions of Business (“Agreement”):
‘Business Day’ means Monday to Friday, excluding any bank holidays in England.
‘Customer Materials’ means all information, text, graphics, photos, designs, content and materials provided by you to DiggleNet for use in the provision of the Services.
‘Data Protection Laws’ means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the General Data Protection Regulation 2016/679 (GDPR) from 25 May 2018 and laws implementing or supplementing the GDPR, and to the extent applicable, the data protection or privacy laws of any other country.
‘Deliverables’ means all Software (created by DiggleNet only), code, documentation, designs, text, printed materials; data; diagrams; reports and specifications (including drafts) developed or provided by DiggleNet to you in relation to the Services in any media. The term ‘Deliverables’ shall also include the ‘Final Deliverables’.
‘Fees’ means any fees payable by you to DiggleNet under this Agreement, as set out in the applicable Statement of Work.
‘Final Deliverables’ means the finalised version of the Deliverables.
‘Hardware’ means any hardware components supplied by DiggleNet including all ancillary equipment, accessories, spares, supplies and related documentation.
‘Intellectual Property Rights’ means any patents, copyright, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs (whether registered or unregistered) database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights or industrial property rights, in each case whether registered or unregistered and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Licence Agreement’ means any terms and conditions governing the supply of Software.
‘Services’ means the services, Software, Deliverables, Hardware and/or support or training services to be provided by DiggleNet to the Customer on the terms of this Agreement, as more particularly detailed in the applicable Statement of Work.
‘Site’ means the installation site(s) in the United Kingdom to which the Services are to be delivered.
‘Software’ means any operating system, utility or applications software delivered by DiggleNet in machine-readable object, printed or interpreted form and either incorporated with Hardware or separately supplied, including related documentation (whether DiggleNet’s own software (i.e. the Deliverables) or third party software which DiggleNet is authorised to supply to the Customer).
‘Statement of Work’ means a document (including a quotation or order form) detailing the Services and/or Deliverables to be provided by DiggleNet to you, as agreed by the parties in writing.
‘Third Party Products’ means any products or services offered by DiggleNet which are licensed to you by a third party e.g. Office 365, antivirus protection etc.
‘Working Hours’ means 9:00 – 17:30 on a Business Day.
2.2. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
2.3. Any clauses or paragraphs referred to in a Schedule to this Agreement is to a clause or paragraph within that Schedule unless otherwise stated;
2.4. Clause headings are for reference purposes only and shall affect the interpretation of the clause;
2.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.6. The terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.7. A reference to ‘writing’ or ‘written’ includes faxes and email unless stated otherwise.
3. Engagement
3.1. This Agreement shall:
3.1.1. apply to and be incorporated into any order for Services to be provided by DiggleNet to the Customer; and
3.1.2. prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
3.2. In consideration of payment to DiggleNet of the Fees, the Customer engages DiggleNet under this Agreement, and DiggleNet agrees, to provide the Services and produce the Deliverables in accordance with the applicable Statement of Work.
3.3. In the event of conflict between this Agreement and a Statement of Work, the Statement of Work will prevail.
3.4. The Schedules to this Agreement shall be deemed to form an operative part of this Agreement and apply to the applicable Service type (e.g. where DiggleNet is creating Software for the Customer, the applicable Service terms in Schedule 1 (Software Development) will take effect).
4. General Obligations
4.1. We will provide the Services to you using reasonable care and skill and we will use reasonable efforts to deliver any Hardware and Deliverables to you in accordance with the applicable Statement of Work.
4.2. We will use reasonable efforts to complete the Services within any timeframe agreed with you, but for the avoidance of doubt, time shall not be ‘of the essence’ for the performance of the Services.
4.3. From time to time we may request that you provide us with certain Customer Materials, further information or assistance to enable us to fully perform the Services and you agree that this will promptly be provided to us. You must ensure the accuracy of all such Customer Materials or information provided to us. If we are unable to perform our obligations to you under this Agreement because we have been prevented or delayed by you, such as your failure to do something requested of you, we will not be liable for any delays which may occur in the provision of the Services. If the delay in providing the Services exceeds seven days, you must pay us for any costs or expenses we have incurred as a result of the delay and all work provided by us up to that point in time.
4.4. You will be responsible for obtaining all licences and permissions in the Customer Materials which we may need in order to fully perform the Services. You hereby confirm that you have all the necessary rights and ownership in the Customer Materials to permit us to use them for the provision of the Services without infringing any third party Intellectual Property Rights.
4.5. You will check that the terms of each Statement of Work and any other information provided to us is correct and accurately reflects your requirements.
4.6. Where the Services are to be performed by DiggleNet at the Customer’s premises or any third party location, the Customer is responsible for arranging any insurance against any loss or damage that may arise and ensuring that such premises are in a suitable condition for the provision of the Services.
4.7. The Services are provided to you only, and you may not resell the Services to any third party.
4.8. You warrant that you have the legal right and authority to enter into and adhere to the terms of this Agreement.
4.9. You agree not to use any Software in any way that: infringes the Intellectual Property Rights of any third party; violates any law or regulation; is defamatory, libellous, unlawfully threatening or unlawfully harassing; is pornographic or indecent; may damage the property, systems or data of others; involves risks of death, personal injury, property damage or environmental damage; involves life support systems, devices or applications; or breaches a contractual commitment between you and a third party.
4.10. You agree that you will not try to decompile or reverse engineer the Software or any Third Party Products. You will not try to use the Services for any purpose other than that for which they are offered to you.
4.11. The Hardware and Software warranties in this Agreement are provided to ensure that all items delivered to the Customer operate in accordance with their specification following initial installation and commissioning. Customers with complex or significant computer installations or whose requirements for up-time are above average are likely to require much greater maintenance and support for their systems from the date of delivery than is provided for under warranty. Accordingly, the Customer is recommended to contract for hardware maintenance and software support in respect of all of the Hardware and Software from their date of delivery to the Customer and in any event immediately upon the expiry of any warranty periods.
5. Delivery of the Services
5.1. Where required, the Customer shall provide DiggleNet with access to the Site for the purposes of the provision of the Services. When DiggleNet (or its employees, sub-contractors or agents) is allowed access to the Site, DiggleNet and its employees, sub-contractors and agents shall obey at all times the lawful orders of any authorised representative of the Customer and the requirements of all applicable rules and regulations to the extent that the same have been made known in advance to the party in question.
5.2. The Customer will furnish the necessary labour (if DiggleNet so requires under DiggleNet’s direction) for taking any Hardware into its designated operating point, unpacking it and placing it in the desired location.
5.3. Delivery date(s) referred to in the applicable Statement of Work or in any quotation, or in any order acknowledgement, order acceptance or elsewhere are approximate only and not of any contractual effect. While DiggleNet will use all reasonable endeavours to meet any scheduled delivery date so referred to in the Statement of Work, it will not be liable for any loss or damage (including loss of use, loss of contract or loss of profits) incurred by the Customer as a result of any failure to deliver on any particular date, even if DiggleNet had been advised of their possibility or such damage could have been within the contemplation of the parties at the date of entering into this Agreement.
5.4. On delivery at the entrance to the Site, the Customer will be responsible for and will bear the entire risk of loss or damage to any Hardware or Software media being supplied as part of the Services, regardless of when acceptance occurs. If the Customer wishes to make any claims for shortages or for damaged Services, full particulars must be notified to DiggleNet within seven days of delivery.
5.5. Title to Hardware will pass to the Customer upon receipt of payment in full. TITLE TO SOFTWARE WHETHER DIGGLENET’S PROPRIETARY SOFTWARE OR SOFTWARE LICENSED BY DIGGLENET WILL NOT PASS TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.
6. Substitutions and Modifications
6.1. DiggleNet reserves the right to make improvements, substitutions or modifications to any part of the Services, provided that such improvements, substitutions or modifications will not materially and adversely affect the provision of the Services or the capability of any Hardware of Software to perform and function in accordance with DiggleNet’s applicable test procedures.
7. Payment terms, Cancellation, Rescheduling and Changing Orders
7.1. The total price for the Services will be paid to DiggleNet on or before delivery of the Services. All invoices are payable net 30 days from receipt.
7.2. Where stated in a Statement of Work we may require you to pay a deposit or advance payment for certain Services.
7.3. VAT and any expenses to be incurred will be shown separately on all invoices (where applicable).
7.4. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 4% per annum above the base rate for the time being of NatWest Bank Plc applicable as well after as before any judgement. This interest will accrue on a daily basis and be payable on demand. Interest will be compounded quarterly until payment is made, whether before or after any judgment
7.5. Notwithstanding the above provision for late payment in this event DiggleNet may at its option, and without prejudice to any other remedy at any time after payment has become due, terminate or temporarily suspend performance of this Agreement.
7.6. If DiggleNet becomes entitled to terminate this Agreement for any reason, any sums then due to DiggleNet will immediately become payable in full.
7.7. All prices quoted for the Services are exclusive of expenses reasonably incurred in the performance of the Agreement by DiggleNet. Such expenses may include, but are not limited to:
7.7.1. travel to the Customer’s Sites when applicable
7.7.2. magnetic media
7.7.3. data connection charges
7.7.4. couriers
7.7.5. freight
7.7.6. hotel expenses
7.7.7. and any other expenses reasonably incurred by DiggleNet in connection with this Agreement.
7.8. If any such expenses are required, we will use reasonable efforts to obtain your written consent before we incur such expenses.
7.9. If the Customer cancels all or any part of an order, or requests changes to the date of delivery or to the configuration ordered at least 30 days before the scheduled delivery date or requested delivery date, whichever is the later, there will be no cancellation or rescheduling charges. But if such cancellation or rescheduling or change or configuration request is less than 30 days from the scheduled or requested delivery date, the Customer agrees to pay a cancellation, rescheduling or reconfiguring charge of 25% of the purchase price agreed with the Customer at the time the order was placed.
7.10. The Customer agrees that the charges set out in clause 7.9 are reasonable and proportionate and are intended as liquidated damages and not as penalties and it is recognised by the Customer that DiggleNet’s costs in these various circumstances will be difficult to estimate or calculate precisely.
7.11. In the event of any configuration changes to the Deliverables or Hardware, if these require the supply of additional Services and/or items, the price will be increased in accordance with DiggleNet’s standard charge and DiggleNet also reserves the right to extend the scheduled delivery date.
8. Price Changes
8.1. DiggleNet reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Services to reflect any increase in the cost of DiggleNet which is due to any fact beyond DiggleNet’s control, such as, but not limited to, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs manufacture, any change in delivery dates, quantities or specifications for the Services which is requested by the Customer or by the Customer’s failure to give DiggleNet adequate information or instructions.
9. Title and Intellectual Property Rights
9.1. No title or rights of ownership, copyright or any other Intellectual Property Rights generated in the course of the performance of the Services is or will be transferred to the Customer.
9.2. All Hardware remains the property of DiggleNet until it is paid for in full.
9.3. You hereby grant DiggleNet a non-exclusive, perpetual, irrevocable, transferable, royalty-free, worldwide licence to use the Customer Materials solely for use in the provision of the Services and the creation and use of the Deliverables.
9.4. We will retain all Intellectual Property Rights and other rights in the Deliverables.
9.5. All Intellectual Property Rights in the Software and/or materials (either in the form of pre-contractual documentation, software documentation or as text, images, research papers or electronically stored code for the manipulation, transmission and presentation of information) developed by us under this Agreement in connection with the Services, including modifications to any software, will remain our property.
9.6. You acknowledge that DiggleNet and its personnel may use any non-confidential details of the Services and the Deliverables (including sharing any analysis or metrics gained from any testing) for a number of purposes, including case studies, publications, exhibitions, competitions and other promotional purposes (such as use in print and on our website). You hereby permit DiggleNet and other associated parties to publish the name and standard logo of the Customer for such purposes.
9.7. Upon payment of the full Fees, we will grant you a licence for all Intellectual Property Rights in the Final Deliverables on a non-exclusive, perpetual, irrevocable, non-transferable, royalty-free, worldwide basis to allow you to make reasonable use of the Deliverables.
9.8. The Customer will indemnify and keep DiggleNet and its Affiliates, officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by DiggleNet arising out of or in connection with any claim:
9.8.1. In relation to the Customer’s breach of
9.8.2. in relation to the Customer Materials or any Deliverables infringing a third party’s Intellectual Property Rights;
9.8.3. in relation to any information provided by you, the Customer Materials or any Deliverables being inaccurate or incomplete; and/or
9.8.4. for any defamatory, offensive or illegal content, information or materials provided by you either directly or indirectly to us.
10. Confidentiality
10.1. A party (“Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed (either orally, in writing or by demonstration) to the Receiving Party by the other party (“Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain (“Confidential Information”).
10.2. In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:
10.2.1. to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this Agreement;
10.2.2. not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such officers, employees, consultants, agents and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement); and
10.2.3. to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.
10.3. Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:
10.3.1. is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or any person or entity to whom it makes disclosure;
10.3.2. the Receiving Party can show was: (i) in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence; or (ii) to have been independently developed by the Receiving Party without reference to the Confidential Information;
10.3.3. the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;
10.3.4. is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or
10.3.5. is required by law to be released (e.g. by a court order), provided that, when permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request.
10.4. This clause 10 shall survive termination of this Agreement, however arising.
11. Data Protection
11.1. General Obligations. Each party will ensure that in the performance of its obligations under this Agreement it will at all times comply with all applicable Data Protection Laws and any other applicable privacy laws and regulations.
11.2. Data Specification: The Customer must provide DiggleNet with a document setting out the (a) subject matter and duration of any processing to be undertaken by DiggleNet; (b) the nature and purpose of the processing; and (c) the type of Personal Data and the categories of data subject relevant to this Agreement.
11.3. Data Controller. The Customer acknowledges and agrees that it will be the Data Controller under this Agreement and that it will be responsible for adequately addressing the use of cookies and data protection obligations in its end-customer / client Terms & Conditions and policies. As DiggleNet does not have any control over the Customer’s data protection notices, policies and Terms & Conditions, the Customer will indemnify and keep DiggleNet and its Affiliates indemnified against all losses, costs, and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by DiggleNet arising out of or in connection with any claim in respect of: (a) a breach of clause 11.1, 11.2 or 11.3; (b) any liability arising whatsoever in respect of the cookies on, or the capture of Personal Data through, the Customer’s website(s); and (c) the consent of data subjects for the exportation of any Personal Data outside of the European Economic Area by DiggleNet under clause 11.6.
11.4. Data Processor. DiggleNet acknowledges and agrees that it will be the Data Processor under this Agreement and that it shall: (a) keep all Personal Data it receives, stores and collects from the Customer strictly confidential (pursuant to clause 10 (Confidentiality), and not disclose any Personal Data to third parties; (b) not use the Personal Data for any purpose other than to perform its obligations under this Agreement; (c) ensure that all Personal Data it receives, stores and collects from the Customer is processed in accordance with this Agreement or as otherwise instructed in writing from time to time by the Customer and DiggleNet shall not process the Personal Data for any other purpose, unless required by law to which DiggleNet is subject, in which case DiggleNet shall to the extent permitted by law inform the Customer of that legal requirement prior to responding to the request; (d) promptly carry out any written request requiring DiggleNet to amend, transfer or delete the Personal Data or any part of the Personal Data made by the Customer during this Agreement; and (e) notify the Customer without undue delay or in any case within 48 hours upon DiggleNet or any sub-processor becoming aware of a breach affecting Personal data and at this time providing the Customer with all sufficient information required to meet any obligation to notify the relevant data protection authority or inform affected individuals under applicable Data Protection Laws.
11.5. Assistance. DiggleNet agrees to assist the Customer with all subject access requests which may be received from an end-customer in a prompt timeframe (at the Customer’s cost) and ensure that appropriate technical and organisational measures are in place to enable the Customer to meet its obligations to those requesting access to Personal Data held by DiggleNet. Upon request, DiggleNet shall provide you with reasonably requested information within a reasonable timeframe to demonstrate its compliance with this clause 11. DiggleNet shall assist the Customer in relation to any data impact assessments and/or any prior consultation with the relevant data protection authority, provided that DiggleNet shall be entitled to charge a reasonable fee for such assistance.
11.6. Data Transfers. DiggleNet agrees not to transmit any Personal Data to a country or territory outside the European Economic Area without the Customer’s prior written consent, provided that such consent is hereby deemed provided where the Personal Data is subject to an adequate level of protection in accordance with Data Protection Laws.
11.7. Return of Data: Upon the termination or expiry of this Agreement for any reason, DiggleNet shall return all Personal Data to the Customer as requested by the Customer in writing, provided that this shall not prevent DiggleNet from retaining a copy to meet its legal or regulatory obligations.
11.8. Safeguards. Taking into account the state of the art, the costs of implementation, and the nature, scope, context and purpose of processing as well as the varying risks to rights and freedoms of natural persons, the parties warrant that for the duration of this Agreement they will implement administrative, technical and physical safeguards sufficient to ensure the security and confidentiality, and protect against the unauthorised or accidental destruction, loss, alteration, use, or disclosure, of Personal Data and other records and information of the end-customers or employees and to protect against anticipated threats or hazards to the integrity of such information and records.
12. Limitation of Liability
12.1. THE CUSTOMERS ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 12.
12.2. This clause 12 sets out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents and sub-contractors):
12.2.1. arising under or in connection with this Agreement;
12.2.2. in respect of any use made by the Customer of the Services, the Hardware and/or the Deliverables or any part of them; and
12.2.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
12.3. All warranties, conditions and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
12.4. The Customer is responsible for the consequences of any use of the Services and Hardware and/or Software supplied.
12.5. Nothing in this Agreement limits or excludes the liability of either party: (i) for death or personal injury which results from negligence; (ii) for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party; or (iii) under any indemnities in this Agreement.
12.6. Subject to clause 12.5:
12.6.1. neither party will be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
12.6.2. each party’s total liability to each other party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with this Agreement will be limited to the Fees paid or payable for the relevant Services provided to the Customer by DiggleNet under the Statement of Work giving rise to such liability in the preceding 12 months to the claim arising (to be calculated on a pro rata basis where the contract term is less than 12 months).
12.7. Whilst we will use our reasonable endeavours to make sure that any Customer Materials you provide to us are not lost or damaged, we will not be responsible or liable for any loss or damage that may occur to them.
13. Termination
13.1. Subject to permitted cancellation under clause 7.9, after you have signed a Statement of Work with DiggleNet, the Services under that Statement of Work can only be cancelled with our written consent. If we agree to the cancellation of the Statement of Work, you will be responsible for paying for all Services that have been provided up to the date of cancellation.
13.2. Without limiting any other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:
13.2.1. a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 14 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so; or
13.2.2. an event, including (or similar in nature to) the following:
a. the Defaulting Party is unable to pay its debts as they fall due;
b. the Defaulting Party goes into liquidation either compulsorily (except for the purpose of reconstruction or amalgamation) or voluntarily;
c. a receiver is appointed in respect of the whole or any part of the Defaulting Party;
d. a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors or has a winding-up order or passes a resolution for the voluntary winding-up or has an administrative receiver appointed or takes steps towards any such event; or
e. the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
13.3. DiggleNet shall have no liability to the Customer in respect of any event of default in clause 13.2 unless the Customer has served written notice of the same upon DiggleNet within 3 months’ of the date it became aware of the circumstances giving rise to the event of default or the date when it ought reasonably to have become so aware.
13.4. If this Agreement terminates for any reason, notwithstanding any other provision, all charges payable by the Customer to DiggleNet under this Agreement will become due and payable immediately in respect of any Services provided up to the effective date of termination and any costs which cannot be reasonably cancelled or recovered. This clause is without prejudice to any right by DiggleNet to claim for interest or any other right under this Agreement.
13.5. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
14. Force Majeure
14.1. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this Agreement and which are beyond the parties’ reasonable control (including, without limitation, strikes, lock-outs or other industrial disputes (involving the workforce of DiggleNet), failure of a utility service or transport network, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or sub-contractors). If a force majeure event continues for a period of 60 days or more, either party may terminate this Agreement immediately by providing the other party with written notice.
15. Miscellaneous
15.1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
15.2. It may be necessary for us to update this Agreement and its terms from time to time. If you continue to use the Services after we have informed you of any amendments or additional terms to the Agreement, you will be deemed to have accepted these changes and they will be incorporated into this Agreement.
15.3. Subject to clause 15.2, no variation of this Agreement will be effective unless it is in writing and signed by both parties.
15.4. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
15.5. You shall not, without the prior written consent of DiggleNet, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement. DiggleNet may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
15.6. Any notice given under this Agreement by either party to the other must be in writing and may be delivered personally or by first class post and in the case of post will be deemed to be given two working days after the date of posting. Notices must be delivered or sent to the other party’s registered business address or to any other address notified in writing by either party to the other for the purpose of receiving notices. Serving notice by email or fax will not be accepted as an effective method of providing notice of a claim under this Agreement.
15.7. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
15.8. Nothing in this Agreement is intended to, or will be deemed to establish any partnership or joint venture between the parties, make a party the agent of the other party or authorise a party to make or enter into any commitments for or on behalf of the other party.
15.9. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
15.10. Any Statement of Work may be signed in counterparts. Each signed copy of a document will be deemed to be an original, but all signed copies, when taken together, will constitute one and the same agreement.
15.11. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by English law and (and subject to the Alternative Dispute Resolution provisions below) the parties irrevocably submit to the exclusive jurisdiction of the English courts.
16. Alternative Dispute Resolution
16.1. Any dispute between the parties about any matter relating to the performance of this Agreement (other than in relation to the payment of any money) which cannot be resolved by the parties within 60 days of notice of the dispute being served by one party on the other will first be referred to mediation or other alternative dispute resolution procedure as agreed between the parties, each acting in good faith. If the parties are unable to agree a procedure or any aspect of the procedure they will seek assistance from the Centre for Dispute Resolution in London. Unless otherwise agreed the parties will share equally the cost of mediation and the use of mediation will be without prejudice to the rights of the parties in all respects if the mediation does not achieve an agreed resolution of the dispute.
SCHEDULE 1: SOFTWARE DEVELOPMENT
1. Deliverables Delivery Process
1.1. This Schedule will apply to the creation of any software applications or other electronic content, as detailed in the applicable Statement of Work. Unless otherwise agreed in writing, the Customer is responsible for the hosting and back-ups of the software.
1.2. The Software generation process is as follows (unless otherwise agreed between the parties):
1.2.1. initial discussions between the parties;
1.2.2. we will commence design of the Software;
1.2.3. we will provide you with initial concepts / mapping for the Software;
1.2.4. we will review these with the Customer and obtain your feedback;
1.2.5. we will update the specifications of the Software and proceed to development;
1.2.6. we will notify you when the Software is ready for inspection and will provide you with a draft version for your review. It is your responsibility to notify DiggleNet of any interoperability errors, spelling mistakes and typographical errors contained in the Deliverables;
1.2.7. we will give due consideration to comments received from you, and if necessary, make further amendments based on your feedback (subject to the number of updates permitted by the applicable Statement of Work;
1.2.8. if any further amendments or revisions are required in excess of the requirements set out in the Statement of Work, DiggleNet will provide such additional Services at its headline rates in force from time to time (available on request) in addition to the Fees set out in the Statement of Work;
1.2.9. on completion of the Deliverables, we will provide you with the Final Deliverables for your final approval. You will be responsible for checking, testing and approving the Final Deliverables before the Services are deemed to be complete. If you do not let us know whether you approve the Final Deliverables within seven days of us sending them to you, you will be deemed to have accepted and approved the Final Deliverables at the end of this seven day period;
1.2.10. once you have approved the Final Deliverables to ensure that they are complete and satisfactory, a copy of the Final Deliverables will be provided to you once full payment of all outstanding Fees for the Services under this Schedule have been received by DiggleNet; and
1.2.11. we will provide support and error fixing to the Final Deliverables for the period specified in a Statement of Work.
1.3. DiggleNet will not be liable for any of the contents of, or errors in, the Final Deliverables in any medium after the Customer has approved them in accordance with paragraph 1.2.9 above.
1.4. DiggleNet reserves the right to refuse to create, use, publish or broadcast all or any part of the Deliverables that it considers in its sole discretion is obscene, threatening, menacing, offensive, discriminatory, defamatory, morally unsuitable, in breach of confidence, infringes a third party’s Intellectual Property Rights or is otherwise illegal.
2. Storage and Transfer
2.1. All Customer Materials and/or Deliverables which we hold and store for you are kept solely at your risk. You are responsible for insuring any such Customer Materials or Deliverables as you deem to be appropriate.
2.2. We will store the electronic files of the Final Deliverables up until the Services have been completed and we will make these available to you to download upon full payment of the Fees by you.
2.3. Upon receiving your request, we will provide you with a quote to store the electronic files of the Final Deliverables on an ongoing basis, in accordance with the time period stated in the quote.
2.4. If you do not request us to store the electronic files of the Final Deliverables in accordance with paragraph 2.3, we may delete the files at our discretion without any liability to you.
SCHEDULE 2: SOFTWARE LICENCES
1. Use of Software
1.1. Intellectual Property Rights subsist in all Software and all related documentation (whether printed or stored electronically) and whether it is DiggleNet’s proprietary Software or third party Software supplied by DiggleNet under a Licence Agreement. All Software and related documentation is supplied to the Customer only under the terms and conditions of the applicable Licence Agreement (whether this has been signed and/or returned to DiggleNet or not). No part of the Software may be copied, reproduced or utilised in any form by any means without the prior approval of DiggleNet. Title or ownership to Software does not transfer to the Customer under any circumstances.
1.2. Where the Customer has not signed the applicable Licence Agreement in advance, the Customer undertakes to return the Licence Agreement supplied with each item of Software, duly signed by the Customer’s authorised representative, prior to the Customer using that item of Software. It is the sole responsibility of the Customer to comply with all of the terms and conditions of the Licence Agreement, and the Customer is hereby notified that any failure to comply with such terms and conditions may result in the revocation of its licence to use the Software.
1.3. The Customer benefits from any warranties in the Software in accordance with the terms of the Licence Agreement governing its use. The sole obligation of DiggleNet under such warranty will be limited to the use of all reasonable efforts to correct any failure of the Software to conform to its user manual current at the date of delivery and to supply the Customer with a corrected version of the Software as soon as practicable after the Customer have notified DiggleNet of any defects.
1.4. The Customer is not authorised to sub-licence the Software to any third party or to assign the licence except in accordance with its terms.
SCHEDULE 3: HARDWARE
1. General
1.1. Where installation or training is not included in the purchase price of the Hardware and not ordered by the Customer in a Statement of Work, the Customer will be solely responsible for this, and DiggleNet disclaims all liability for such installation or training.
1.2. Where the Hardware includes data communications equipment and date transmission speeds are given in relation to any item or Hardware, these are at all times subject to any conditions of the applicable telecommunications utility company relating to the use of the relevant modem at the speeds indicated and to the capability of any of that company’s equipment to which the Hardware is linked.
1.3. Acceptance will be accomplished by using test procedures and/or programs established by DiggleNet which are applicable to the Hardware. Acceptance will take place at the Site when DiggleNet demonstrates that the applicable diagnostic and/or verification programs work properly. If DiggleNet’s demonstration of the test procedures and/or programs at the Site is delayed for more than seven working days other than through any fault of DiggleNet, the Services will be deemed to be accepted. In the event that any item of Hardware fails the acceptance procedures DiggleNet will at its option, replace or repair that item.
2. Delivery, Title and Risk
2.1. The terms of any shipping and delivery of any Hardware will be agreed in writing between the parties from time to time.
2.2. You will assume the risk for the Hardware once it has been delivered to the delivery address which you specified in your order. We accept no liability where you provide an incorrect delivery address or where you fail to collect the Hardware from the delivery address which you specified.
2.3. Risk in the Hardware will only transfer back to DiggleNet upon it’s (or its agents’) physical receipt of the Hardware in the event that it is eligible to be returned in accordance with the relevant Statement of Work.
2.4. Title to any Hardware you order shall pass to you upon our receipt of payment in full for that Hardware.
2.5. Until such time as title in the Hardware passes to you, DiggleNet shall be entitled at any time to require you to ‘deliver-up’ the Hardware to DiggleNet and if you fail to do so, DiggleNet may enter your premises or any third party premises where the Hardware is stored and repossess the Hardware.
2.6. You shall not be entitled to pledge or in any way charge by way of security for any indebtedness any Hardware which remains the property of DiggleNet.
2.7. If you or a designated third party (other than the delivery agent) fails to take delivery of the order or fails to give us adequate delivery instructions at the time stated for delivery (otherwise than by reason of DiggleNet’s fault) then without prejudice to any other right or remedy available to it, DiggleNet may:
2.7.1. store the Hardware until actual delivery and charge you the reasonable costs (including transportation and insurance) of storage; or
2.7.2. sell the Hardware at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to you for the excess over the purchase price or charge you for any shortfall below the purchase price.
3. Warranties
3.1. It is acknowledged that DiggleNet is simply a reseller of the Hardware. Whilst we work to ensure that product information provided to you is correct, you should always check the actual product packaging and accompanying materials. Please always read labels, warnings and directions provided with the product before use.
3.2. DiggleNet warrants that it has good title to or the legal right to supply all Hardware supplied to the Customer. Hardware is warranted against defects in workmanship and materials for a period of 90 days from the date of delivery, or 90 days from the date of acceptance, whichever is earlier. Where DiggleNet has not installed the Hardware, the warranty under this clause is subject to final approval of the installation by DiggleNet at the Customer’s expense. Where DiggleNet has installed the Hardware, DiggleNet’s sole responsibility under this warranty will be, at its option, either to repair or replace during Working Hours, any component which proves defective during the warranty period. All replaced Hardware or parts will become DiggleNet’s property. The warranty service will be performed at DiggleNet’s repair facility, or on Site (except in the case of minor component repairs) if DiggleNet has installed the Hardware or if the Customer has a current maintenance agreement with DiggleNet covering the Hardware. Returns will be in accordance with DiggleNet’s packing instructions, but costs of return will be paid by DiggleNet. In any case where DiggleNet reasonably determines that the Hardware is not defective within the terms of the warranty, the Customer will pay DiggleNet all costs of handling, transportation and repairs at DiggleNet’s then prevailing rate.
3.3. The stated warranties apply only to the initial end-user of the Hardware and are contingent upon proper treatment and use of the Services with no unauthorised modifications and maintenance, at a safe and suitable Site.
3.4. The sale of Hardware to the Customer does not convey any ownership or licence to exploit any of the Intellectual Property Rights of DiggleNet or the manufacturer in the Hardware. Any such Intellectual Property Rights granted to the Customer by DiggleNet will be granted only subject to a separate restrictive, non-transferable, non-exclusive licence agreement. All operating instructions, manuals and other documentation referencing the Hardware and supplied by DiggleNet are the copyright of DiggleNet or the manufacturer and must not be copied or disclosed to any third party without the prior express written consent of DiggleNet and/or the manufacturer (as applicable).
SCHEDULE 4: IT SUPPORT
1. Our Obligations
1.1. Our IT Support Services will be provided during our usual Working Hours.
1.2. We may at our discretion offer to perform work outside of our Working Hours, in which case we may charge you additional Fees. This may include performing remedial work that has failed during standard hours.
1.3. We shall use reasonable endeavours to respond to queries and resolve issues raised by you in relation to your Software promptly. Support will be provided during Working Hours and the precise timing will depend on a variety of matters including the complexity of the problem as follows:
1.1.1. Critical (Customer’s business cannot trade) – Response within 15 minutes, 4 hour target fix;
1.1.2. High (material effect on Customer’s business) – Response within 1 hour, 8 hour target fix;
1.1.3. Medium (minor effect on Customer’s business) – Response within 1 hour, 16 hour target fix; and
1.1.4. Low (minor fix, but no effect on Customer’s business)- Response within 4 hours, 40 hour target fix.
1.4. We shall use reasonable endeavours to provide you with the Services in accordance with the Service specification for the applicable level of service purchased as detailed in the applicable Statement of Work. We reserve the right to make changes in the specification of the Services from time to time which do not materially affect their quality or performance.
1.5. The Services will be provided remotely unless otherwise agreed with you on a case by case basis or in a Statement of Work. Any on-site services may be subject to additional Fees and expenses unless this is included within the scope of Services in the applicable Statement of Work.
1.6. Whilst DiggleNet will use reasonable efforts to avoid disruptions to you when providing the Services, DiggleNet takes no responsibility for any issues that may arise on your PC, the Software or in any errors in Third Party Products.
2. Your Obligations
2.1. By using our IT Support Services, you acknowledge and agree that the nature of the Services requires us to monitor your Software and/or PC remotely via our software and you hereby provide your consent for us to do so for the duration of the IT Support Services. You must ensure that we have remote access to the Software and/or PC to enable us to perform the Services and you must maintain the power supply and the telephone lines required for any internet connection to the Software and/or PC.
2.2. You agree to promptly notify us if any Software and/or your PC is not operating correctly and not modify any equipment in any way without our prior agreement.
2.3. After completion of any work that we do for you, we may request that you confirm to us in writing within 24 hours that the work has been completed and is to your satisfaction. If we do not hear from you within this period, the work will be treated as complete and satisfactory.
2.4. It is your responsibility to ensure that prior to DiggleNet providing the Services (on any occasion) that all critical data has been backed up and that appropriate recovery procedures are in place. In compliance applicable laws, DiggleNet is obliged to report any apparent infringements found on data during recovery or any other works pursuant to the Services.
2.5. It is your responsibility to ensure that the effectiveness of any Third Party Products supplied by DiggleNet is maintained and that such Third Party Products are updated from time to time when an update is made available.
3. Service Exclusions
3.1. The Services do not include:
3.1.1. the investigation, diagnosis or rectification of any fault or other problem resulting from:
3.1.1.1. the negligent use or operation of the Software;
3.1.1.2. modification or repair to the Software and/or your PC made by anyone other than a person previously approved in writing by us;
3.1.1.3. your failure to implement recommendations in respect of faults previously advised by us; or
3.1.1.4. any breach by you of any of your obligations under this Agreement.;
3.1.2. the removal of viruses;
3.1.3. ad hoc work e.g. installation of a new computer; or
3.1.4. parts that are required as the result of a hardware failure if it is not within warranty (however, labour is included).
3.2. You may request us to provide the Services in respect of these matters, but if we agree to do so, we will be entitled to make an additional charge in accordance with our then current standard rates.
4. Third Party Products Terms
4.1. We sell a number of different Third Party Products and each has their own Licence Agreement attached to their use by you. Please ensure that you review any Licence Agreement as it will be binding on you.
4.2. Unless we are an authorised reseller of the Third Party Products (for example, broadband services on telephone line, anti-virus and Microsoft 365 subscriptions), it is acknowledged and agreed that DiggleNet will not be a party to any such Licence Agreement and will have no liability to you in relation to any Licence Agreement.
4.3. Where DiggleNet is an authorised reseller of any Third Party Products, the duration of the subscription period for such Third Party Products will be as stated in the applicable Statement of Work. For the avoidance of doubt, the duration of any IT Support Services are not contingent on the duration of any Third Party Product subscriptions.
5. Telecommunications Requirements
5.1. When computer equipment is connected to the public network, i.e. a switchboard or telephone network, certain regulations of the telecommunications provider apply. It is the sole responsibility of the Customer to ensure compliance with all such regulations.