1.1 In these Conditions the following terms shall have the following meanings:-
“Anti-Bribery Laws” means any and all statutes, statutory instruments, bye-laws, orders,
directives, treaties, decrees and laws which relate to anti-bribery and/or anti-corruption,
including the Bribery Act;
“Bribery Act” means the Bribery Act 2010;
“Business Day” means any and all days from Monday to Friday (inclusive) in any week
but excluding English bank holidays or public holidays;
“Company” means Daisy Communications Limited a company registered in England and
Wales with company registration number 4145329 whose registered office is Daisy House,
Lindred Road, Business Park, Nelson, Lancashire BB9 5SR;
“Company Number” means as defined within the definition of “Number” below;
“Conditions” shall mean this document;
“Contract” means the agreement between the Customer and the Company for the
provision of the Equipment incorporating these Conditions, the Order Form and any other
Service Specific Conditions and/or Promotional Terms incorporated into the Contract in
accordance with condition 2.1;
"Contractor" means any person who, on or prior to the Effective Date of the Contract
(and/or prior to the date of the transfer of such services to the Company), supplied services
to the Customer which were the same as or similar to those provided or to be provided by
the Company to the Customer under the Contract;
“Customer” means the person, firm or company specified on the Order Form and any
other person appearing to act within that person’s, firm’s, or company’s authority and
includes where relevant the Customer’s permitted assigns;
“Delivery” means the point at which the Equipment arrives at the Customer’s Site
immediately prior to the unloading of such Equipment from the delivery vehicle and
"Delivered" shall be construed accordingly;
“Effective Date” shall mean the later of 1) date on which the Company signs the relevant
Order Form and 2) all conditions precedent have been satisfied;
“Emergency Call” means a call to 999 or 112 or any other number associated with UK
"Employee" means any employee, former employee, consultant, former consultant,
contractor, former contractor, agent or former agent of the Customer or any Contractor or
"Employment Regulations" means any laws in any country in the world implementing the
provisions of EC Directives No. 77/187 dated 14 February 1977, 2001/23 dated 12 March
2001 or equivalent or similar regulations that protect the rights of employees on a transfer
of a business or undertaking or any laws providing for the automatic transfer of employees
on transfer of the whole or part of an undertaking, business or service provision change,
including in the United Kingdom the Transfer of Undertakings (Protection of Employment)
Regulations 2006 as amended or replaced from time to time;
“Equipment” means the equipment and/or software related products to be supplied under
the Contract as set out on the Order Form;
“Group” means together a party, its Parent Undertakings, its Subsidiary Undertakings and
the Subsidiary Undertakings of any of its Parent Undertakings from time to time;
“Installation” means the physical installation of Equipment at the Site;
“Installation Services” means services for the Installation of Equipment;
“Intellectual Property Rights” means all intellectual and industrial property rights including
patents, know-how, registered trade marks, registered designs, utility models, applications
for and rights to apply for any of the foregoing, unregistered design rights, unregistered
trade marks, rights to prevent passing off for unfair competition, copyright, database rights,
topography rights and any other rights in any invention, discovery or process, in each case
in the United Kingdom and all other countries in the world and together with all renewals
"Normal Working Hours” means 9.00am to 5.30pm on any Business Day;
“Order Form” means the order form to which either these Conditions are attached or which
is expressed to be subject to these Conditions which sets out the details of the order,
including (without limitation) the Customer’s details and the Equipment and/or Services to
be supplied under the Contract;
“Parent Undertaking” has the meaning given to it in section 1162 of the Companies Act
“Personal Data” has the meaning given to it in section 1 of the Data Protection Act 1998;
“Price” means the price payable by the Customer for the Equipment and (where
applicable) Installation Services;
"Promotional Terms" means any additional terms which apply to the Price and which may
be specified on the Order Form and/or notified by the Company in writing to the Customer
in relation to the Equipment and/or Installation Services, at the time the relevant Order
Form was submitted;
"Relevant Laws" means any statute, regulation, bylaw, ordinance or subordinate
legislation which is in force for the time being to which a party is subject; the common law
as applicable to the parties (or any one of them); any binding court order, judgment or
decree applicable to the parties (or any one of them); and any applicable industry code,
policy, guidance, standard or accreditation terms (i) enforceable by law which is in force for
the time being, and/or (ii) stipulated by any regulatory authority to which a party is subject,
in each case, for the time being;
“Service Specific Conditions” means any additional terms and conditions which are to
apply to the Contract as specified on the Order Form or these Conditions in respect of
specific Services (but excluding Promotional Terms);
“Site” means a place of business at which the Installation Services and/or Equipment are
to be provided as specified on the Order Form;
“Subcontractor” means any subcontractor of a Contractor; and
“Subsidiary Undertaking” has the meaning given to it in section 1162 of the Companies
2.1 The Order Form constitutes the Customer's offer to the Company to purchase the
relevant Equipment and/or Installation Services. A Contract shall come into force and bind
both parties once:
2.1.1 the Customer’s offer is accepted by an authorised representative of the Company
signing the Order Form; and
2.1.2 the credit status of the Customer being to the satisfaction of the Company (in the
Company’s sole and absolute discretion); and
2.1.3 the conditions in condition 4.1.1 being met.
2.2 All quotations, estimates and tenders are given and contracts are made by the
Company subject to and only upon the terms of the Contract which cannot be varied unless
agreed in writing by the Company in accordance with condition 15. These Conditions
supersede all other terms, conditions and warranties which are implied by law or which the
Customer may purport to apply under any purchase order, acknowledgement of delivery or
similar document or otherwise; and/or which have been established between the Company
and the Customer by course of dealing.
2.3 In the event of a conflict or inconsistency between any of the documents which
constitute the Contract, the following descending order of precedence shall apply:
2.3.1 the Order Form;
2.3.2 any applicable Service Specific Conditions;
2.3.3 any applicable Promotional Terms;
2.3.4 the Conditions.
2.3.5 any other documents referred to on the Order Form or in these Conditions.
For the avoidance of any doubt, the fact that the Promotional Terms are silent on a
particular matter whereas any of these Conditions, the Order Form and/or the Service
Specific Conditions make provision for the same, shall not be deemed to give rise to a
conflict or inconsistency.
2.4 Any illustrations, samples or descriptive material provided by the Company, including
drawings, specifications of weight, capacity or dimensions and particulars of shade shall
not form part of the Contract but shall be treated as approximate only unless specifically
stated otherwise. Any savings quoted are estimates and illustrative only. All documents
containing such illustrative or descriptive material (as well as the copyright therein) shall
remain the exclusive property of the Company and must not be copied or loaned or
transferred by the Customer. The Customer acknowledges and agrees that in entering into
the Contract, it has not relied on any such illustrations, samples or descriptive material.
2.5 Each order for Equipment and/or Installation Services shall (for the purposes of this
condition 2.5) be deemed (subject to condition 2.1) a separate Contract (whether or not
included on the same Order Form) to the effect that any delay or failure to supply
Equipment and/or Installation Services shall not entitle the Customer (to the extent that any
such entitlement exists) to terminate the Contract for other Equipment and/or Installation
Services or any other contract entered into under these Conditions.
2.6 Any undertaking by the Customer not to do any act or thing shall be deemed to include
an undertaking that the Customer shall procure that any user of the Equipment including
(without limitation) any of the Customer’s employees, agents or contractor, shall not do
such act or thing.
2.7 The Customer warrants and undertakes to the Company that it is entering into the
Contract for the purposes of its trade, business and/or profession, and is not acting as a
3.1 The Customer shall be responsible for providing the Company with all information
relevant to the supply of the Equipment and the provision of the Installation Services (as
the case may be) within sufficient time to enable the Company to duly perform the Contract.
3.2 Without limitation to the generality of condition 3.1, the Customer shall ensure that the
details set out on the Order Form and any drawings, sketches, specifications, descriptions
or other instructions supplied by the Customer or any agent or representative of the
Customer in connection with the supply of any Equipment or Installation Services (as the
case may be) by the Company are accurate and fully describe the Customer’s requirements
and the Customer shall be liable for each liability, loss, injury, damage, demand, claim,
cost, charge or expense which may be incurred or sustained by the Company by reason of
or arising directly or indirectly out of or in respect of any inaccuracy in respect of any such
drawings, sketches, specifications, descriptions or other instructions in relation thereto, or
where the compliance with, or use of any such any details, drawings, sketches,
specifications, descriptions or other instructions by the Company constitutes the
infringement of the Intellectual Property Rights or other rights of a third party.
4.1.1 The conditions referred to in condition 2.1.3 are that:
188.8.131.52 the Company provides written confirmation to the Customer that the Equipment
referred to on the Order Form as far as it is aware at the time of review is available and can
be supplied in the stated timescales; and
184.108.40.206 the Company providing confirmation by email to the Customer that the terms stated
on the relevant Order Form do not contain any errors or omissions.
4.1.2 In consideration of the Customer’s payment of the Price pursuant to condition 7.1 the
Company will take reasonable steps to deliver the Equipment and, where applicable supply
the Installation Services using reasonable skill and care, within an estimated period of time.
Such period shall commence from the date of receipt by the Company of all instructions
and information required for the execution of the Contract. The Company does not
guarantee that Delivery or Installation will take place within such period, and time is not
(and may not be made) of the essence of the Contract.
4.1.3 Without prejudice to the generality of condition 3, the Customer shall be responsible
for providing the Company with any necessary instructions for delivery of the Equipment
within a reasonable period prior to the estimated delivery date advised by the Company to
4.1.4 If the Customer fails to take delivery of the Equipment or if by reason of instructions
or lack of instructions from the Customer the delivery of any Equipment in accordance with
the Contract is delayed for more than twenty-eight days after the Company has given notice
in writing to the Customer that the Equipment is ready for delivery the Equipment shall be
deemed to have been Delivered. The Customer shall pay to the Company the reasonable
costs of storing, protecting and preserving such Equipment after the expiry of such period
of twenty-eight days.
4.1.5 If the Contract provides for Delivery by instalments, any delay in the Delivery of any
instalment shall not entitle the Customer to treat the Contract as at an end or to reject any
4.1.6 If by reason of refusal or delay of delivery or Installation, the Equipment shall be
deemed to have been Delivered in accordance with condition 4.1.4 then payment shall be
made by the Customer to the Company of the balance of the Price within seven days of
such deemed delivery date.
4.2.1 The responsibility for the cost of connection to the public switch telecommunications
network and/or the provision of additional lines to the public telephone system lies with the
4.2.2 The Customer shall ensure that a suitable earthed mains electricity supply of 240volts
ac conforming to the Institution of Engineering and Technology’s IEE Wiring Regulations
in force at the date of Delivery is available for each piece of Equipment within 3 metres of
such pieces of Equipment.
4.2.3 The Customer shall prepare the Site(s) (at its own cost) in accordance with the
Company’s instructions so that any necessary Equipment can be installed.
4.2.4 The Customer shall adhere to the Equipment manufacturer’s power and
environmental specifications (as published from time to time) and confirm to all local
electrical code requirements.
4.2.5 The Customer shall provide power to Equipment via an adequate number of circuits
provisioned according to the Equipment manufacturer’s specification.
4.2.6 The Customer shall be responsible for the cost to supply and install any and all
infrastructure required to accommodate the power and environmental specifications as
specified by the Equipment manufacturer (as published and as amended from time to time).
4.2.7 The Customer shall (at its cost) install an uninterruptable power supply at the Site
providing not less than 60 minutes of standby power at the Site for the Equipment.
4.3 PROPERTY AND RISK
4.3.1 The risk of loss or damage to the Equipment shall vest with the Customer from the
moment of Delivery or deemed Delivery (as described in condition 4.1.4) irrespective of
whether title to the Equipment has passed or payment or part payment made. From the
moment of Delivery or deemed Delivery (as described in condition 4.1.4) the Customer
shall be responsible for insuring the Equipment.
4.3.2 Notwithstanding Delivery and the passing of risk, the legal and beneficial interest in
the Equipment supplied under the Contract shall not pass to the Customer until the
Company has received in cleared funds payment in full of all sums due for the Equipment
and Installation Services (where applicable).
4.3.3 Until such time as the legal and beneficial interest in the Equipment has passed to
the Customer, the Customer shall hold such Equipment as the Company’s fiduciary agent
and bailee, and keep such Equipment properly stored, protected and free from any loss,
damage, and/or deterioration and insured against all risks for its full reinstatement value
and identified as being the Company’s property until title passes.
4.3.4 Until such time as the legal and beneficial interest in the Equipment passes to the
Customer, the Company shall be entitled at any time to require the Customer (at the
Customer’s cost) to deliver up the Equipment to the Company at its nominated location
and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer
or any third party where the Equipment is stored and remove and repossess such
4.3.5 The Customer shall not, without the prior written consent of the Company, pledge or
in any way charge by way of security for any indebtedness, or alter or modify, any
Equipment which remains the property of the Company, but if the Customer does so all
monies owing by the Customer to the Company shall (without prejudice to any right or
remedy of the Company) forthwith become due and payable.
4.4 LIABILITY FOR REPLACEMENT OR REPAIR
4.4.1 Subject to the following sub-conditions of this condition 4.4, at the Company’s option,
for a period of twelve months from the date of Delivery or Installation (where applicable)
whichever is the later event, without cost to the Customer, the Company will (as applicable)
either repair or replace any defective Equipment to make good any defect which shall be
proved to the satisfaction of the Company to be the result of faulty design, materials or
manufacture or re-perform any Installation Services (only where the Company has supplied
Installation Services under the Contract) provided that subject to condition 4.4.3, the
Company shall have no liability for any such defects unless the Customer notifies the
Company, within three Business Days from Delivery or the completion of the Installation
Services (where applicable) whichever is the later event, of any defect arising prior to
Delivery and/or after Installation (as the case may be) and (subject to condition 4.4.2) within
twenty four hours of any latent defect arising within such twelve month period.
4.4.2 If the Customer enters into an agreement for maintenance of the Equipment with a
third party, the Company’s liability for defects in the Equipment shall cease, save for the
Company’s liability for defects arising on or before Delivery of the Equipment in accordance
with condition 4.4.1.
4.4.3 The liability of the Company shall apply only to defects that appear under proper use
and under conditions of operation not more onerous than those declared to the Company
by the Customer prior to entering into the Contract, and in particular shall not apply to
defects which arise from neglect, misuse, or faulty maintenance of the Equipment by the
Customer or any of its other contractors, or from alterations carried out without the prior
written consent of the Company or from repairs carried out improperly by the Customer or
its servants or agents or arising from normal wear and tear.
4.4.4 Any repaired or new parts provided by the Company under this condition 4 will be
delivered by the Company to the Customer free of charge. Any Equipment (or part) which
has been returned to the Company and replaced by the Company shall become the
property of the Company.
4.4.5 The Company reserves the right to charge on a quantum meruit basis for the costs
of repairs and/or call-outs if the Company considers that the damage has resulted from
misuse or unauthorised repair or alteration of the Equipment by the Customer or any third
party, or from normal wear and tear.
4.4.6 Neither acknowledgement of receipt, nor investigation, by the Company of any claim
or consent given hereunder shall constitute or imply admission by the Company of any
liability in respect of such claim.
4.4.7 Subject to condition 9.5, the rights and remedies provided to the Customer under this
condition 4.4, in connection with any defect in the Equipment resulting from faulty design,
materials or manufacture or Installation or defect in the Installation shall be the Customer's
exclusive remedies in respect of the same.
4.5 TRADE MARKS AND BRANDING
4.5.1 The Company shall be entitled to fix legends bearing the Company’s and/or its third
party supplier’s name and/or trade marks or other marks to any Equipment. The Customer
shall ensure that no such marks are removed or defaced at any time.
5.1 The Customer hereby consents to and shall procure that its owners, directors, officers
and assigns consent to, the Company carrying out searches with credit reference agencies
relating to the creditworthiness of the Customer and/or its owners, directors, officers and
assigns and the Customer shall, upon the Company’s request, promptly supply or procure
the supply of all information requested for a credit search with a credit reference agency,
who will add to the Customer’s records and/or those records of its directors, officers and
assigns details of the searches and these will be seen by other organisations that make
5.2 It is agreed that where the Company approaches a finance provider or lease provider
to arrange finance for the purchase or leasing of Equipment then the Company acts as an
agent for the Customer and not for the finance provider or lease provider.
5.3 The Customer undertakes to supply all information requested by the selected finance
provider(s) who will register searches with one or more credit agencies, which will be seen
by other organisations that make searches.
5.4 In the event that the Company is unable to obtain relevant finance on the terms
originally proposed then the Company will return the deposit received from the Customer
for the relevant Equipment and shall have no further liability to the Customer.
5.5 If indemnities are required by a relevant finance provider, failure to provide such
indemnities shall constitute a breach of these Conditions by the Customer and shall entitle
the Company to terminate this Contract and retain any deposit paid by the Customer.
5.6 After Delivery and Installation (where applicable) of the Equipment is completed, any
failure by the Customer to complete any relevant finance agreement documentation shall
render the Customer liable to pay to the Company the whole of the Price as defined in
condition 6.1.1 within seven days of the date of the Company’s invoice.
6.1 EQUIPMENT AND INSTALLATION SERVICES
6.1.1 Save where, and to the extent that, any Promotional Terms apply, the Price is as
stated on the Order Form. Any invoices issued by the Company in respect of the Price
shall, save in the case of manifest error, be final, conclusive and binding on the Customer.
6.1.2 Unless otherwise specified the Price is based on the assumption that the Delivery of
the Equipment and (where applicable) Installation Services will be completed in one visit
to the Site and accordingly the Company may at its discretion at any time increase the
Price to take account of any additional costs to the Company (including but not limited to
storage and delivery costs) by reason of Delivery and/or the Installation Services taking
more than one visit.
6.2 VALUE ADDED TAX
All sums referred to under these Conditions, the Order Form, any Promotional Terms and
any Service Specific Conditions are (unless otherwise stated) exclusive of Value Added
Tax (VAT) and any taxes of a similar nature which may from time to time be introduced,
which will be payable by the party paying the relevant sum at the rates in force at the date
of the relevant invoice.
7.1 EQUIPMENT AND INSTALLATION SERVICES
7.1.1 Unless otherwise stated on the Order Form, a deposit equal to at least one half of the
Price is payable by the Customer at the time of the placing of the relevant order and the
balance of the Price as defined in condition 6.1.1 is subject to any bona fide dispute in
accordance with Condition 9.10, payable immediately upon Delivery (subject to condition
4.1.6). Any delay by the Company in invoicing the Price shall not shall not relieve the
Customer of its liability to pay for the same.
7.2 If payment of any sum payable to the Company is not made on or before the due date,
the Company shall be entitled to charge interest thereafter on such sum at either the rate
of four per cent per annum above the current base rate of The Royal Bank of Scotland plc
from time to time or, if higher, such rate as the Company would be entitled to claim under
the Late Payment of Commercial Debts (Interest) Act 1998 (such interest being deemed to
accrue from day to day and being compounded on the last day of each calendar month)
from the due date until the date of payment whether before or after judgment.
7.3 Unless e-billing is not expressly excluded on the Order Form, invoices will be made
available for download by the Customer and the Customer will be notified at the e-mail
address set out on the Order Form that the invoice is ready for downloading. Where ebilling
is expressly excluded on the Order Form, the invoice may be sent to the registered
address of the Customer (or the address of the Customer) at an additional cost to the
Customer as set out in the Tariff.
7.4 If the Company is unable, for whatever reason, to recover any sum due under the
Customer’s account within four days following the due date for payment, the Company
reserves the right to forthwith suspend all or any of the Services.
7.5 Without prejudice to the Company's other remedies, if the Customer’s account remains
outstanding for any reason after the original due date for payment, then:
7.5.1 the Customer will be charged an administration fee for each piece of correspondence
in connection with the recovery of the overdue amount; and
7.5.2 the Company reserves the right to refer the outstanding account to a debt collection
agency. If the Company instructs a debt collection agency to collect payment (including
interest and late payment charges) on its behalf the Customer must pay the Company’s
costs payable to the agency, who will add the sum to the Customer’s outstanding debt.
7.6 The Customer will ensure that the name of the account holder is the same as the name
on the payment details provided.
7.7 The Company may, without notice, withhold any payments due to the Customer under
the Contract or any other agreement between the Company or any other member of its
Group and the Customer if:
7.7.1 the Company has reason to believe the Customer is in breach of the Contract; and/or
7.7.2 the Contract is terminated for any other reason; and/or
7.7.3 the Company has reason to believe the Customer is insolvent or is likely to become
7.8 If any sum owed by the Customer to the Company under the Contract or any other
contract with the Company is not paid by the due date, the Company may deduct this sum
from any payment or credit due to the Customer under the Contract or any other contract
with the Company.
7.9 Payment of all sums due to the Company shall be made without any set-off whatsoever.
7.10 If the Customer acting in a bona fide manner intends to dispute any charge on an
invoice, the Customer must first pay the undisputed amounts and communicate the
disputed amount in writing to the Company within seven days of the date of the invoice and
provide the Company with all relevant information in support of the disputed charge.
7.10.1 The parties shall meet as soon as reasonably practicable, and in any event, within
10 Business Days of the dispute being raised, in order to seek to settle the matter in dispute;
7.10.2 Where the dispute is settled in favour of the Company, the Customer shall pay the
disputed part of the invoice immediately and interest shall be payable in accordance with
7.10.3 Where the dispute is settled in favour of the Customer, the disputed amount shall
not be payable by the Customer.
8.1 To enable the Company to fulfill its obligations under any Contract:
8.1.1 the Customer shall permit or procure permission for the Company, its agents,
employees, representatives and any other person(s) authorised by the Company to have
reasonable access to the Site, Equipment and any other relevant telephone system and
other equipment and shall provide such reasonable assistance as the Company requests.
If the Company is refused access or prevented from accessing the Site, for whatever
reason, it will be relieved from all of its performance obligations under this Contract and
shall have no liability to the Customer and the Customer shall hold the Company harmless
in this regard.
8.1.2 The Company will normally carry out work by appointment during Normal Working
Hours but may request the Customer to (and the Customer shall) provide access at other
times. In the event that the Customer cancels, reschedules or misses any pre-arranged
appointment, it shall be liable to the Company for any costs and expenses which the
Company incurs as a result of such cancellation, rescheduling and/or missed appointment.
8.2 At the Customer’s request, the Company may agree (at its sole discretion) to work
outside Normal Working Hours and the Customer shall pay the Company’s reasonable
charges for complying with such a request.
8.3 The Customer warrants, represents and undertakes that there are adequate health and
safety provisions in place at the Site, and that the Customer holds third party public liability
insurance with a level of cover of at least the minimum required by any Relevant Law.
8.4 The Customer shall procure all consents, licences and permissions necessary from
landlords or other third parties for the carrying out of preparation work, Installation Services
and for the provision, use and operation of the Equipment at the Sites (save to the extent
the Company has agreed in writing to do it). The Customer shall provide copies of such
consents, licences and permissions to the Company upon request.
8.5 The Customer shall provide the Company with the site and building plans (to include
full details of all internal cabling runs) of the Sites and provide the Company with full details
of all other services in the vicinity of the proposed works.
8.6 The Customer is responsible for making the Site good after any work undertaken by
the Company at a Site, including without limitation replacing and re-siting items and for redecorating.
8.7 If the new installation or moving Site involves the visit of an engineer to facilitate the
new installation, the Customer will be responsible for the costs incurred by the Company
for the appointment of the engineer together with an administration fee in respect of any
additional works required to be undertaken by the Company to complete the transfer of the
8.8 The Customer must identify asbestos contaminated areas at the Site prior to
implementation and commencement of the works. In the event that the Company discovers
asbestos contaminated areas at the Site then it will cease work until the asbestos is
removed or the area is made safe for the works to resume. The Company shall have no
liability for any delay which is as a result of asbestos contamination and the Customer shall
hold the Company harmless in this regard. The Customer shall be responsible for the
removal of all asbestos at the Site including the co-ordination of and all costs incurred in
connection with the engagement by the Customer of a company which specialises in the
installation of cables in asbestos contaminated areas.
9.1 Unless otherwise stated in this Contract the Company makes no warranty in respect of
the supply of Equipment and/or the Installation Services and all other terms, conditions and
warranties which may otherwise be implied into this Contract by any Relevant Law or
course of dealings between the parties are hereby excluded to the fullest extent legally
9.2 Subject to condition 9.5, in no circumstances shall the Company’s liability to the
Customer arising under or in connection with this Contract (whether in contract, tort
(including without limitation negligence) misrepresentation, breach of statutory duty or
otherwise) exceed 110% of the Price paid in respect of the Equipment or Installation
Services to which the claim relates.
9.3 Subject to condition 9.5, under no circumstances shall the Company be liable in any
event under or in connection with the Contract and whether in contract, tort (including
negligence) misrepresentation, breach of statutory duty or otherwise for any:
9.3.1 loss of revenue;
9.3.2 loss of business;
9.3.3 loss of contracts;
9.3.4 loss of, damage to, or corruption of data;
9.3.5 loss of anticipated savings;
9.3.6 loss of profits; or
9.3.7 indirect, consequential or special losses; whether or not the Company knew or ought
to have known that such losses or damages might be incurred.
9.4 Neither party shall be liable to the other party for any breach of any provision of the
Contract (whether in breach of contract, tort (including but not limited to negligence)
misrepresentation, breach of statutory duty or otherwise) caused by any reason outside the
reasonable control or responsibility of that party including, without limitation, any act of God,
terrorist attacks, inclement weather, vandalism, failure or shortage or
power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour
disturbance, any act or omission of Government, highways authorities, or other competent
9.5 Nothing in these Conditions excludes or restricts either party’s liability for:
9.5.1 death or personal injury resulting from that party’s negligence or its employees’
negligence (while acting in the course of their employment);
9.5.2 any fraud, fraudulent misrepresentation or fraudulent misstatement;
9.5.3 any indemnity given under the Contract; and/or
9.5.4 anything for which the parties cannot at law limit or exclude their liability.
9.6 Subject to clause 9.5, the Customer agrees that any cause of action that it may have
against the Company and/or any of its Group members (including, its (or their) affiliates,
directors, officers, agents, consultants and employees) must commence within two (2)
years after the cause of action arose, otherwise, the Customer’s cause of action is
10.1 Without prejudice to any other rights of the Company, the Customer shall indemnify,
keep indemnified and hold harmless the Company against all costs (including without
limitation legal costs and the cost of enforcement (on a full indemnity basis)) liabilities,
claims, damages, direct, indirect or consequential losses (including without limitation, pure
economic loss, loss of profits, loss of business, depletion of goodwill and like loss whether
such losses are direct, indirect or consequential losses), expenses and/or judgments
whatsoever, which it may suffer or incur, and arising from any:
a) breach by the Customer of any warranties, undertakings and/or representations given
under the Contract and/or any failure to comply with any obligations, responsibilities and/or
liabilities of the Customer set out in the Contract; and/or
b) injury and/or damage suffered or incurred by or to any of the Company's (or any of the
Company’s contractor's) employees and/or equipment whilst on the Site; and/or
c) infringement by the Customer (including, its affiliates, directors, officers, agents,
consultants and employees) of any third party’s Intellectual Property Rights.
11.1 Subject to conditions 11.3, 11.4 and 11.5 below and without prejudice to any specific
termination rights set out elsewhere in these Conditions, the Customer shall not be entitled
(once an order has been accepted by the Company) to change or cancel an order.
11.2 Subject to condition 11.6, in the event of any termination by the Customer of the
Contract (in whole or in part), the Customer shall indemnify the Company in full against all
loss costs, damages, charges and administration charges (of a minimum of £300) in
respect of the termination of the supply of any or all of the Equipment and (if applicable)
Installation Services which is the subject of the Contract and expenses incurred by the
Company as a result of such termination.
11.3 Without prejudice to any other rights of the Company under these Conditions or
otherwise, the Company shall be entitled at any time and for any reason whatsoever to
terminate this Contract on the giving of not less than thirty days’ written notice to the
Customer, without further liability to the Customer.
11.4 A Contract may be terminated forthwith by either party by notice in writing if the other
party materially breaches its obligations under this Contract (including without limitation
non-payment of charges due) and in the case of breaches which are capable of remedy
such party fails to remedy such breach within fourteen days of written notice by the other
party of what the breach is and requesting that the breach is remedied. The Company shall
also be permitted to terminate this Contract forthwith on notice to the Customer in the event
that the Customer is in material breach of any other contract to which these conditions
apply (as in force from time to time) and which breach, if capable of remedy, has not been
remedied within fourteen days of written notice by the Company of what the breach is and
requesting that the breach is remedied.
11.5 Notwithstanding anything to the contrary expressed or implied in these Conditions,
either party (without prejudice to its own rights) may terminate all Contracts forthwith in the
event that a liquidator (other than for the purpose of solvent amalgamation or
reconstruction) trustee in bankruptcy, administrator or receiver is appointed in respect of
the whole or part of the assets and/or undertaking of the other party or the other party
enters into an arrangement or composition with its creditors, or other circumstances arise
which entitle a court or creditor to appoint a receiver or administrator or to make a winding
up order (save as in respect of a solvent reconstruction of such relevant party’s group of
11.6 The termination or expiry of the Contract shall be without prejudice to any rights or
liabilities which have accrued prior to such expiry or termination. Any provision of this
Contract which expressly or by implication is intended to survive, shall survive the
termination or expiry of the Contract.
11.7 Any implied right to terminate for convenience that the Customer may have under
applicable law is hereby expressly excluded.
11.8 For the avoidance of doubt, in the event of termination of the Contract for any reason,
the Customer shall not be entitled to a refund of any pre-paid sums whether such sums are
attributable to the period before, including or after the date the Contract terminates.
12.1 Where the Company provides software to the Customer (“Software”), the Company
will grant the Customer a non-exclusive, non-transferable licence to use the Software solely
for the term and purposes of the Contract. If required by the Company, the Customer shall
sign such end user licence agreement as may be reasonably required by the owner of the
copyright in the Software to protect the owner’s interest in that Software and for the
Customer to be able to use the Software.
12.2 Except as permitted by applicable law or as expressly permitted under the Contract
the Customer shall not de-compile, reverse-engineer, or modify the Software, or copy the
relevant manuals or documentation.
12.3 The Customer shall, and shall procure that all end users shall, comply with all Software
licence terms and conditions which are embedded in the Software in a click through form
The Company may monitor and record calls made to or by the Company by or to the
Customer (and/or any of their employees or personnel), for training purposes, to improve
the quality of its customer services and to assist with complaint handling. The Customer
undertakes to make its employees and personnel aware of the rights reserved by the
Company under this condition.
14.1 The Company and the Customer will keep in confidence any information of the other;
whether written or oral, of a confidential nature obtained under or in connection with the
Contract except to the extent any disclosure is required by law. The Customer and the
Company will not, without the consent of the other, disclose such information to any person
other than their employees, contractors or professional advisers who shall require the
information in order for the Customer or the Company to fulfil its obligations under the
14.2 Information shall not be treated as confidential if it is:
14.2.1 lawfully in the public domain; or
14.2.2 lawfully in the possession of the Customer or the Company before disclosure from
the other has taken place; or
14.2.3 obtained from a third person who is entitled to disclose it; or
14.2.4 replicated independently by someone without access or knowledge of the
14.3 If the Customer receives a request under the Freedom of Information Act 2000 which
encompasses any information provided to the Customer by the Company in connection
with the Contract the Customer will notify the Company immediately of the request and give
the Company at least ten Business Days to make representations before releasing the
requested information (save to extent otherwise required by law).
14.4 The Customer acknowledges and agrees that the Company may use Personal Data
and/or confidential information obtained from the Customer during or following the
completion of the Order Form or as a result of the Customer’s use of the Equipment or (if
applicable) Installation Services and/or arising from or out of the provision of the Equipment
or (if applicable) Installation Services, for the following purposes:
14.4.1 administering the Customer’s account (including, without limitation, arranging
finance with lessors of the Equipment and sharing the data with members of the Company's
14.4.2 enabling the Company to supply the Installation Services and Equipment to the
14.4.3 for invoicing purposes.
14.5 The Company will not pass Personal Data obtained from the Customer to any third
parties for marketing purposes but may send the Customer information about the
Company’s (or any member of its Group’s) own products and services which it considers
may be of interest to the Customer, unless the Customer specifically requests on the Order
Form that the Company does not do so.
14.6 If the Customer wishes to have details of the credit reference or the fraud prevention
agencies the Company uses to obtain information about the Customer, or receive a copy
of the information the Company holds about them, it may do so by submitting a request in
writing for a copy of the information to the Company's Data Controller at Daisy House,
Lindred Road Business Park, Nelson, Lancashire, BB9 5SR, stating the Customer’s full
name, address, account number and phone number. The Company may charge a
reasonable administration fee for providing such information.
14.7 The Customer warrants, undertakes and agrees that it will grant or procure from its
employees and other personnel such consents to the use of Personal Data (referred to
above) as may be necessary to enable the Company to use such data for the purposes
described in this condition 14.
14.8 Subject to condition 14.9, where a party who has disclosed confidential information so
requests and following termination of the Contract for whatever reason, each party who
has received any confidential information of the other party shall without delay:
14.8.1 return to the other party, in a form capable of delivery, anything containing or
recording the confidential information, whether in the form of documents, computer records,
audio tapes, video tapes, CD Roms or any other media; and
14.8.2 certify in writing that any such confidential information not returned has been
destroyed or made permanently unusable;
14.9 The Company shall not be required to return confidential information pursuant to
condition 14.8 where continuing use or disclosure of such confidential information is
necessary in order for the Company or any member of the Company’s Group to exercise
its rights or perform services under the Contract or where the Company is required to
maintain such confidential information pursuant to any Relevant Laws.
15.1 The Company may change the Conditions and/or Service Specific Conditions at any
time and will publish any change in line with condition 15.2.
15.2 The Company will publish any changes to the Conditions and/or Service Specific
Conditions online at www.daisygroupplc.com (or at such other URL as is notified to the
Customer by the Company from time to time):
15.2.1 at least thirty days before the change is to take effect for changes that may be of
material detriment to the Customer; and
15.2.2 as soon as is reasonably practical in the circumstances prior to the changes taking
effect, for all other changes.
15.3 If the Customer wishes to object to any proposed change which is of material detriment
to the Customer, the Customer must notify the Company in writing (addressed to Customer
Services, Daisy Communications Limited, Daisy House, Lindred Road Business Park,
Nelson, BB9 5SR) within thirty days of publication of the proposed change, otherwise the
Customer will be deemed to have accepted the proposed change. For the avoidance of
doubt, the service by the Company of any notice in accordance with condition 15.2 shall
not constitute either acceptance of or an admission by the Company that any proposed
change is of material detriment to the Customer, nor shall the service of notice by the
Customer under this condition 15.3 constitute or be deemed to constitute evidence that the
relevant change is of material detriment to the Customer.
15.4 No variation of the terms of the Contract however notified (save with regard to the
manuscript details on the Order Form including, where initialled by both parties, manuscript
amendments to the type face, as such details may be inputted by authorised staff of the
Company) will be accepted by the Company unless authorised by notice in writing by a
Director of the Company.
16.1 The Customer shall ensure that user names and passwords used by it and/or its
personnel and/or users in connection with the Equipment are kept secure and confidential
at all times and are only used by authorised users. The Customer shall inform the Company
immediately if the Customer knows or suspects that a user name or password has been
disclosed to an unauthorised user, or is being used in an unauthorised way, or if there is
any illegal, fraudulent or unauthorised use of the Equipment. The Customer will not change
or attempt to change a user name without the Company’s written consent.
16.2 The Company reserves the right (at the Company’s sole discretion):
16.2.1 to suspend access to the Equipment by one or more user names if at any time the
Company thinks that there has been or is likely to be a breach of security (including a
breach of the Customer’s obligations under this condition 16); and
16.2.2 to ask the Customer to (in which case, the Customer shall) change any or all of the
passwords the Customer’s uses in connection with the Equipment .
16.3 The Customer will inform the Company immediately of any subsequent changes to
the information the Customer supplies to the Company in connection with the Contract.
16.4 The Customer accepts and acknowledges that the Equipment is not guaranteed to be
secure and the Company does not guarantee the prevention or detection of any
unauthorised attempts to access the Equipment.
16.5 The Customer acknowledges that the Company has no control of a Customer’s
PABX/switch configuration, voice mail security or other feature services enabled.
16.6 The Company shall not be responsible for call charges or other charges resulting from
fraudulent and/or unauthorised use of the Equipment or any use of the Equipment by any
unauthorised third parties (who are not employees of the Company) and the Customer
agrees to pay all additional charges related to such fraudulent and/or use by unauthorised
16.7 Any assistance given by the Company in relation to fraudulent and/or authorised use
by the Customer or third parties (or the prevention of such use) will be on a reasonable
endeavours basis only and no liability can be accepted by the Company for any loss
sustained by the Customer via fraudulent and/or unauthorised means that are beyond the
Company’s reasonable control (save for any fraud and/or authorised use by an employee
of the Company acting in that capacity).
16.8 The Customer shall, at all times, be responsible for:-
16.8.1 preventing unauthorised use of the Equipment;
16.8.2 maintaining the security of all Equipment within its (or its employees’, agents’ or
contractors’) control; and
16.8.3 maintaining (and ensuring that each of its authorised users maintains) at all times,
the integrity and secrecy of all passwords, log-in details and access codes used for the
purposes of accessing or using the Equipment.
16.9 Without limitation, the Customer shall put in place and comply at all times with the
following security measures:-
16.9.1 the Customer shall ensure that the password used in connection with the Equipment
is strong and is made up of not less than eight characters which shall include at least one
number, one letter and one alphanumerical symbol;
16.9.2 the Customer shall regularly and at least every 6 (six) weeks change the password
set out at condition 16.9.1 above;
16.9.3 the Customer shall restrict access to passwords to key individuals;
16.9.4 the Customer shall ensure that it has up to date anti-virus protections and that it has
firewalls in place which are maintained by the Customer in accordance with best industry
16.9.5 the Customer shall, without delay, follow any security directions given to it by the
Company from time to time.
17.1 The Customer shall, and shall procure that its officers, employees, agents and any
other persons who perform the services for and on behalf of it in connection with a Contract
17.1.1 comply with all applicable Anti-Bribery Laws;
17.1.2 not offer, promise, give, request, agree to receive, receive or accept a bribe or
financial or other advantage or commit any corrupt act;
17.1.3 comply with the Company’s Ethics and Anti-bribery Policy (available at
www.daisygroupplc.com/why-daisy/compliance/ or at such other URL as is notified to the
Customer by the Company from time to time) as the Company may update them from time
to time (“Relevant Policies”);
17.1.4 have and shall maintain in place throughout the term of all Contracts its own policies
and procedures, including adequate procedures under the Bribery Act, to ensure
compliance with the Anti-Bribery Laws and the Relevant Policies, and will enforce them
17.1.5 not do or omit to do any act or thing which constitutes or may constitute an offence
under Anti-Bribery Laws;
17.1.6 not do or omit to do any act or thing which causes or may cause the Company and/or
its Group to be in breach of and/or commit an offence under any Anti-Bribery Laws;
17.1.7 without prejudice to condition 17.1.6, not do or omit to do any act or thing which
causes or may cause the Company or any member of the Company’s Group to be guilty of
an offence under section 7 of the Bribery Act (or would or may do so if the Company was
unable to prove that it had in place adequate procedures designed to prevent persons
associated with it from undertaking such conduct); and
17.1.8 provide the Company and any member of the Company Group (at the Customer’s
cost) with such reasonable assistance as it may require from time to time to enable it to
perform any activity required by any relevant government or agency in any relevant
jurisdiction for the purpose of compliance with any Anti-Bribery Laws.
17.2 The Customer shall:
17.2.1 promptly report to the Company and any member of the Company’s Group any
request or demand for any financial or other advantage of any kind received in connection
with the performance of the Contract by it or by its officers, employees, agents or any other
person who performs the services for or on behalf of it in connection with the Contract; and
17.2.2 upon request, certify in writing signed by a director of the Customer that the
Customer has complied with all of its obligations under this condition 17. The Customer
shall provide such supporting evidence of compliance as Company or any member of the
Company’s Group may reasonably request.
17.3 The Customer warrants to the Company and all members of the Company’s Group
that it has not, and its officers, employees, agents and any other persons who perform the
services for or on behalf of it in connection with the Contract have not breached any
applicable Anti-Bribery Laws; been convicted of any offence involving bribery, corruption,
fraud or dishonesty; offered, promised, given, requested, agreed to receive, received or
accepted a bribe or financial or other advantage or committed any corrupt act; done or
omitted to do any act or thing which constitutes or may constitute an offence under the AntiBribery
Laws; done or omitted to do any act or thing which caused or may cause any person
to be in breach of and/or commit an offence under any Anti-Bribery Law; done or omitted
to do any act or thing which caused or may cause any person to be guilty of an offence
under section 7 of the Bribery Act; or given any financial or other advantage, inducement
or reward to any person in connection with the awarding or continuation in force of this
17.4 The Company and/or any member of the Company’s Group may terminate the
Contract immediately if the Customer is in breach of any of its obligations under this
condition 17 or if the Company or any member of the Company’s Group has reasonable
cause to believe that such a breach has occurred or may occur. If the Company or any
member of the Company’s Group terminates the Contract in accordance with this condition
17.4, the Customer shall not be entitled to claim any compensation or any further
remuneration from the Company or any member of the Company’s Group.
18.1 Any Intellectual Property Rights supplied by the Company or any member of the
Company Group to the Customer, or specifically produced by the Company for the
Customer, in connection with this Contract, shall be the exclusive property of the Company
and/or the relevant member of the Company Group and/or relevant licensor and to the
extent that any such rights vest in the Customer shall be deemed to be and shall be
assigned to the Company or the relevant member of the Company Group by the Customer.
The Customer shall not disclose to any third party or use any such Intellectual Property
Rights except to the extent that it is or becomes public knowledge through no fault of the
Customer, or as required for the performance of the Customer’s obligations under this
Contract. Any Intellectual Property Rights belonging to, licensed to or supplied by the
Company or any member of the Company Group to the Customer shall be used by the
Customer as expressly permitted under the terms of this Contract and in accordance with
the instructions of the Company or any member of the Company’s Group.
18.2 Any licence provided by the Company to the Customer in relation to the Intellectual
Property Rights shall be personal to the Customer, non-exclusive, revocable and limited to
the United Kingdom and in the absence of earlier revocation shall terminate upon
termination of this Contract.
19.1 Subject to any deemed acceptance by the Customer under condition 4.1.4, no
forbearance or indulgence shown or granted by the Company to the Customer whether in
respect of these Conditions and/or any Service Specific Conditions or otherwise shall in
any way affect or prejudice the rights of the Company against the Customer or be regarded
as a waiver of any of these Conditions and/or any Service Specific Conditions.
19.2 The Contract (and any non-contractual matters arising out of or in connection with it)
shall be governed by and construed in all respects in accordance with English law and the
Customer hereby submits for all purposes of and in connection with the Contract to the
exclusive jurisdiction of the English Courts (including in relation to non-contractual
19.3 The Contract is made for the benefit of the parties to it and (where applicable) their
successors and permitted assigns and is not intended to benefit, or be enforceable by,
anyone else and no third party shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of the Contract.
19.4 Any notice, invoice or other document which may be given by either party under the
Contract shall be in writing (except as provided otherwise) sent for the attention of the
relevant person, and to the address or fax number, given on the Order Form (or such other
address, fax number or person as the relevant party may notify to the other party) and shall
be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery.
A notice is deemed to have been received, if delivered personally, at the time of delivery,
in the case of fax, at the time of transmission, in the case of pre-paid first class post or
recorded delivery, 48 hours from the date of posting or if earlier upon receipt and, if deemed
receipt under this condition 19.4 is not within Normal Working Hours, at 9.00 am on the first
Business Day following delivery. To prove service, it is sufficient to prove that the notice
was transmitted by fax, to the fax number of the party or, in the case of post, that the
envelope containing the notice was properly addressed and posted. E-mail shall not be a
valid method of serving notices under this Contract.
19.5 Any director or representative of the Customer who signs on behalf of the Customer
will be deemed an authorised signatory and thereby the Company shall be entitled to rely
on such signatory as binding the Customer to the obligations in this Contract in all respects.
19.6 The Customer shall not, without the prior written consent of the Company, assign,
transfer, charge, sub-contract or deal in any other manner with all or any of its rights or
obligations under the Contract.
19.7 The Company 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 the Contract without the
consent of the Customer. However, the Customer shall, if the Company requires, execute
such deeds and/or documents as may be necessary or required by the Company to give
effect to any such dealing in such rights and/or obligations.
19.8 Unless specifically provided otherwise, rights arising under the Contract are
cumulative and do not exclude rights provided by law.
19.9 The Customer shall not, without the prior written consent of the Company, at any time
from the date of the Contract to the expiry of six months after the termination or expiry of
the Contract, actively solicit or entice away from the Company, or actively employ or
attempt to employ (save where the relevant person has responded to a general
advertisement by the Customer for the relevant job vacancy), any person who is, or has
been, engaged as an employee or sub-contractor of the Company in the provision of the
Installation Services to the Customer. Any consent given by the Company in accordance
with this condition 19.9 shall be subject to the Customer paying to the Company a sum
equivalent to twenty per cent of the then current annual remuneration of the Company’s
employee or sub-contractor or, if higher, twenty per cent of the annual remuneration to be
paid by the Customer to that employee or sub-contractor.
19.10 The Company and the Customer agree that the Employment Regulations will not
apply to transfer the employment or engagement of any Employee to the Company in
connection with the Contract or the termination or expiry of all or part of any contract
between the Customer and a Contractor or any other provision of the Installation Services.
19.11 The Customer agrees to indemnify and keep indemnified the Company against all
liabilities, losses, actions, proceedings, damages, costs (including legal and employment
costs), claims, demands and expenses brought or made against or suffered or incurred by
the Company arising out of or connected with:
19.11.1 the transfer or alleged transfer of the employment or engagement of any Employee
to the Company pursuant to the Employment Regulations or otherwise; and
19.11.1 the employment or engagement or termination of employment or engagement by
the Customer or a Contractor and/ or any Subcontractor of any Employee.
19.12 If any provision (or part of a provision) of the Contract is found by any court or
administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the
other provisions will remain in force.
19.13 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal
if some part of it were deleted or modified, that provision will apply with whatever minimum
modification is necessary to make it valid, enforceable and legal whilst still giving effect to
the commercial intention of the parties.
19.14 Save where the context otherwise requires, in these Conditions a reference to a
"person" shall include a company, body corporate, unincorporated association, state,
governmental or statutory body or authority, and/or a partnership, as well as a natural
person (as appropriate).
19.15 Except with the prior written consent of the other party, neither party shall:
19.15.1 make any public statement about the Equipment and/or Installation Services or
otherwise publicise the Contract or any information relating to it; or
19.15.2 use any trademarks or identifying logos owned or licensed to any member of the
other party in any manner.
19.16 Nothing in the Contract is to be construed as establishing or implying any partnership
or joint venture between the parties, or as appointing any party as the agent or employee
of any other party. No party shall hold out any other party as its partner or joint venturer.
Except, and to the extent, that the Contract expressly states otherwise, no party may incur
any expenses or negotiate on behalf of any other party or commit any other party in any
way to any person without that other party's prior written consent.
19.17 Each party shall do and execute, or arrange and procure for the doing and executing
of, any act and/or document reasonably requested of it by any other party to implement
and give full effect to the terms of the Contract.
19.18 The Contract constitutes the entire agreement between the parties and supersedes
any prior agreement or arrangement in respect of its subject matter. Neither party has
entered into the Contract in reliance upon and nor shall they have any remedy in respect
of, any representation or statement (whether made by the other party or any other person)
which is not expressly set out in the Contract.
19.19 The Contract may be entered into in any number of counterparts and by the parties
on separate counterparts, all of which taken together shall constitute one and the same