ADSL Modem damaged in storm - Would Tiscali replace it FOC ???

Hi,
My next-door neighbour has subscribed to the Tiscali 150K service and
was supplied with a Sagen USB Modem. Unfortuately during a recent electrical
storm, the ADSL stopped working and he has now noticed that there is some
signs of melting on the plastic case of the modem. As I am righ next door
and presumably connected to the same cabinet, my Router was lucky not to
succumb to the same fate.

The terms of the contract [below] do not say anything about who owns the
modem (Tiscali or the subscriber) but I presume that is is under warranty
however I am not aware whether modem warranties include/exclude storm damage
( I know that there is no subscriber-side surge protector on the line)

What si the chance of him getting it replaced FOC ???

Steve


Terms and Conditions for Broadband Services

This document sets out the terms and conditions of your use of the
Broadband services of Tiscali UK Limited ("Tiscali") and - together with the
schedules for pricing, services, specification and technical support set out
as links from this page - comprises the full agreement for your use of our
Broadband services ("the Agreement").

1 Commencement and Duration of this Agreement

1.1 This Agreement commences on the date you accept these terms (by
clicking on the "I accept" button during the registration process) (the
"Commencement Date") and will continue for an initial term of 12 months (the
"Initial Term") and indefinitely thereafter unless terminated earlier by
either party in accordance with Clause 13 of this Agreement. Our Acceptance
of your application for Broadband services is subject to us performing a
credit check on you and being satisfied in all respects with the outcome of
the credit check.

2 Our Provision Of The Services

2.1 We will provide the Broadband services (the "Broadband Services")
to you with reasonable skill and care and in accordance with the provisions
of this Agreement. Whilst we will use our reasonable endeavours to begin
providing these Broadband Services by any date provisionally agreed with
you, we have no liability for any failure to meet any date. We can only
provide services in areas of the United Kingdom in which we are technically
able to offer Broadband services from time to time.

2.2 In order to use the Broadband Services, you need an existing
telephone line and a personal computer of a minimum specification. You must
also ensure that compatible cables and extension leads are used to and from
your telephone socket, modem and PC in order to use the service. You
acknowledge that we are dependent upon certain third parties to install and
provide the Broadband Services to you. You also acknowledge that there may
be technical limits that prevent us from delivering an operational service
to you. We will endeavour to provide the Broadband Services to you at the
access rate you choose but, due to congestion within the network, the speed
of service may be reduced at times.

2.3 We do not undertake to provide a fault free service. If, however,
a fault occurs, you should report the fault by telephone, electronic mail or
in writing to the Support Service. We will let you know as soon as
reasonably practicable of any periods of downtime of the Support Service.

2.4 Modem Support: Tiscali offers technical support on all modems
purchased during the registration process. If you choose to use your own
modem we may have to refer you back to your supplier for technical advice
2.5 We may suspend the Broadband Services including during scheduled periods
of downtime where necessary for operational reasons such as repair,
maintenance or improvement of the Services or because of an emergency.
Tiscali will restore the Services as soon as it reasonably can after
suspension.

2.6 We may, for operational or other reasons, change any codes or the
numbers allocated to you or the specification of the Services but any such
changes will not materially affect the Broadband Services.

2.7 We reserve the right to vary the Content (as defined in clause 5.2
below) from time to time in our sole discretion and do not guarantee or
warrant that any particular item or items of Content will be available at
any given time or at the commencement of the Services.

2.8 We may immediately suspend your access to the Broadband Services
in the event that you do not pay an invoice in accordance with Clause 3.

3 Charges And Deposits

3.1 You agree to pay us the charges as detailed in our Price List (the
"Fees").

3.2 We will send you your first bill shortly after we begin providing
the Broadband Services. We will send you a further bill every month, but we
may send you a bill at anytime. We will send bills to the address on your
registration details or any other address you ask us to. We also reserve the
right to issue bills by e-mailing these bills to you every month (although
we reserve the right to send you a bill by e-mail at any time).

3.3 During the registration process, we will ask you to
complete/provide a payment by credit card to enable us to collect payments
for your account, and for any additional services that we may provide to
you. If you seek to discharge your account in a manner other than by way of
direct debit or credit card (e.g. cheque or cash) we reserve the right to
levy an additional administration charge as detailed in our Price List.

3.4 You must pay all charges and rentals in accordance with your
credit card authority, or if, for some reason, your credit card payment
fails, in accordance with the time for payment detailed in your bill. You
must pay all deposits when we ask for them.

Failure to pay.

3.5.1 If your electronic payment is rejected, or becomes, or is,
invalid or unavailable, thereby preventing us from recovering the sums due
under your account within 4 days following the due date for payment, we
reserve the right immediately to withdraw your access to the Broadband
Services. You will also be charged an administration fee as detailed in our
Price List.

3.5.2 In these circumstances, you will be sent a letter giving you 10
days in which to arrange for your account to be discharged in full.

3.5.3 If, in response to our letter, you provide us with your valid
payment details so as to enable us to collect the sums due on your account,
we will re-apply for payment. If your proposed electronic payment method is
still rejected, invalid or unavailable, or if your account remains
outstanding for any other reason, 18 days after the original due date for
payment, then (i) you will be charged a further administration fee (as
detailed in our Price List) together with a fee for the submission of a
further warning letter (again as detailed in our Price List), and (ii) a
letter will be sent to you requesting the discharge of your account in full,
and/or for appropriate arrangements to be made with us for your account to
be discharged, which must be effected within 7 days from the date of this
letter, failing which we reserve the right to refer your outstanding account
to Tiscali's credit control department.

3.5.4 If your account remains unpaid for a period of 25 days after the
original due date for payment, a security deposit of three times your
average monthly invoice will be required before we reinstate your Broadband
Services.

3.5.5 If your account remains unpaid for a period of 32 days after the
original due date for payment, your service will then be terminated and your
account will be referred to Tiscali's credit control department for it to
take the appropriate action to collect the outstanding sums.

3.5.6 If we are required to instruct our solicitors or other
professional advisers to collect any outstanding sums on your account, you
will be responsible for, and we will look to you to discharge, those costs
that are incurred by us in taking such action.

3.6 You must ensure that the account holder's name is the same as the
name on the payment details that are provided.

3.7 If you currently receive a Broadband service from an alternative
supplier you are responsible for any contractual agreement you have with
them and any liabilities you may incur for terminating your current
agreement.

3.8 If you change address, you may transfer the Broadband Services to
your new address on payment of the Moving Fee.

4 Equipment

4.1 You will ensure that any equipment that you attach (directly or
indirectly) to the Broadband Services is technically compatible with the
Broadband Services and that its use does not breach any relevant legislation
or telecommunications industry standards.

5 Your Use of the Broadband Services

5.1 These Broadband Services are provided solely for your use and you
cannot resell or attempt to resell the Broadband Services (or any part of
it) to any third party. In addition, if you have a mail server, you must not
allow relay emails from outside your domain from your mail server.

5.2 We do not warrant or guarantee the accuracy or completeness of any
of the information, sound, software and any other materials (in whatever
form) and services made available to you as part of the Broadband Services
(the "Content") or any further information or results which may be derived
from it. You acknowledge that you will not rely on any Content in making any
business or other decision and that your use of the Content is at your sole
risk.

5.3 Please note that there may be additional conditions (either ours
or those of a third party) displayed on line relating to particular Content.
These conditions will also form part of this Agreement should you access
such Content.

5.4 You are entirely responsible for evaluating any goods or services
offered by third parties via the Broadband Services or on the Internet. We
will not be a party to or in any way be held responsible to you for any
transaction between you and third parties.

5.5 You warrant that any information you make available on your
website, both yours ("Customer Information") or that of a third party
("Third Party Content") is and will remain wholly accurate and will not
include any information or material, any part of which, or the accessing of
which or use of which, would be a criminal offence or is otherwise unlawful.

5.6 You also warrant that you will comply with all consumer and other
legislation, instructions or guidelines issued by regulatory authorities and
relevant licences which relate to the provision of the information on your
website including those notified by us to you.

5.7 You must not use the Broadband Services:

5.7.1 in a way that breaches any legislation or any licence applicable
to you or that is in any way unlawful or fraudulent; or

5.7.2 to deliver, knowingly receive, upload, download, use or re-use
any information or material which is abusive, defamatory, obscene or
menacing, or in breach of any copyright, privacy or any other rights; or

5.7.3 to send or procure the sending of any unsolicited advertising or
promotional material; or

5.7.4 in a way that does not comply with our specific instructions.

5.8 You will fully indemnify us against any actual or potential claims
or legal proceedings against us by a third party because of your use of the
Broadband Services in breach of the provisions of this Clause 5. We shall
notify you of any such claims or proceedings and inform you regularly as to
the progress of such claims or proceedings.

5.9 You acknowledge that Broadband Services are provided to other
users and we owe a duty to these users as a whole to preserve our network
integrity and avoid network degradation. If, in our reasonable opinion, we
believe that your use of the Broadband Services has or may adversely affect
such network integrity or may cause network degradation we may change your
chosen access rate or manage your Broadband Services as we see fit in the
circumstances.

6 Access and Security

6.1 You will at all reasonable times, provide our employees and
agents, and anyone acting on Tiscali's behalf producing a valid identity
card, with access to the Location. We will normally only require access
during normal working hours but may, require you to provide access at other
times, on reasonable notice.

6.2 Our employees and agents will observe your reasonable premises
regulations, as previously notified to us in writing. You will provide a
suitable and safe working environment for our employees and those of any
third parties who assist us in providing the Broadband Services to you.

6.3 You will use your reasonable endeavours to provide personnel,
resources and any other information as we reasonably require, to assist us
in the provision of the Broadband Services to you.

7 User names and Passwords

7.1 You must ensure that user names and passwords used in connection
with the Broadband Services are kept confidential and are only used by
authorised users. Please inform us immediately if you know or suspect that a
user name or password has been disclosed to an unauthorised user or is being
used in an unauthorised way. You must not change or attempt to change a user
name without our written consent.

7.2 We reserve the right (at our sole discretion):

7.2.1 to suspend user names and password access to the Broadband
Services if at any time we think that there has been or is likely to be a
breach of security; and

7.2.2 to ask you to change any or all of the passwords you use in
connection with the Broadband Services.

7.3 You must inform us immediately of any subsequent changes to the
information you supply to us when you register for the Broadband Services.

7.4 You accept and acknowledge that the Broadband Services, as other
Internet applications, is not secure and we do not guarantee the prevention
or detection of any unauthorised attempts to access the Broadband Services.

8 Personal Data

8.1 We may contact you before, during and after the term of this
Agreement in order to administer, evaluate, develop and maintain the
Broadband Services. Please note that we may record your telephone calls to
us and we will keep a record of personal information you provide to us in
connection with the Broadband Services.

8.2 We will comply with our obligations under the Data Protection Act
1998 and other any applicable data protection legislation. You are also
required to comply with all data protection legislation. In addition, you
must maintain all required registrations, including those reasonably
requested by us to enable us to process your personal data in connection
with our performance of our obligations under this Agreement.

8.3 By registering for the Broadband Services you consent to our using
and/or disclosing your personal information for the following purposes:

8.3.1 processing your application (which may involve credit checking
by a licensed credit reference agency who may record that a credit check has
been made and disclosing certain personal and account details to a bank for
the purposes of setting up a direct debit account);

8.3.2 providing or arranging for third parties to provide Customer
Care/Help Desk facilities and billing you for the Broadband Services (which
may involve disclosing your information to third parties solely for those
purposes); and

8.3.3 to selected third parties for the purposes of providing and
operating the Broadband Services and installing Equipment.

9 Intellectual Property Rights

9.1 You warrant that you are the owner of, or that you are authorised
by the owner of, any trade mark or name that you wish to use as your
registered Domain Names ("Domain Names") and use as part of your uniform
resource locator ("URL").

9.2 If we undertake Domain Names and URL registration on behalf of
you, you will reimburse us for any registration fees paid by Tiscali to the
Internet registration authorities. We do not guarantee that any Domain Names
or URL requested by you will be available.

9.3 We may require you to select a replacement Domain Names or URL and
may either refuse to provide or may suspend the Broadband Services if we
reasonably believe that the Domain Names or URL is, or is likely to be,
offensive, abusive, defamatory or obscene or in breach of the provisions of
Clause 5.7.

9.4 Any patents, design rights, know-how, copyrights, trade marks, the
right to use software and all other similar proprietary rights (whether
registered or unregistered) worldwide ("Intellectual Property Rights")
relating to the Broadband Services or arising during the development of the
Broadband Services, belong to us or to a relevant third party.

9.5 The Content is protected by copyright, trademark and other
Intellectual Property Rights, as applicable. You must not and must not
permit anyone else to copy, store, modify, distribute externally, broadcast
or publish any part of the Content, and the Content may only be used for
your own purposes.

10 Software

10.1 Where we provide software to you to enable you to use the
Broadband Services ("Software"), we grant you a non-exclusive,
non-transferable licence to use the Software solely for the term and
purposes of the Agreement. You may need to sign agreements reasonably
required by the owner of the copyright in the Software to protect the
owner's interest in that Software for you to be able to use the Software.

10.2 Except as permitted by applicable law or as expressly permitted
under this Agreement you cannot de-compile or modify the Software, or copy
the manuals or documentation.

10.3 We may offer updates or modifications to the Software or
documentation and we will notify you of any applicable charges for such
updates or modifications at the time we offer them to you.

11 Intellectual Property Right Indemnity

11.1 You will fully indemnify and hold us harmless against all claims
and proceedings arising from infringement of any third party's Intellectual
Property Rights by reason of your use or publication of the Customer
Information, the Content or Third Party Content.

12 Limitation of Liability

12.1 Nothing in this Agreement excludes each party's liability with
respect to death and personal injury resulting from the negligence of that
party, its employees, agents or subcontractors or for fraudulent
misrepresentation or under the tort of deceit.

12.2 Neither party shall be liable to the other, either in contract,
tort (including negligence) or otherwise for direct or indirect loss of
profits, business or anticipated savings, nor for any indirect or
consequential loss or damage or for any destruction of data.

12.3 Subject to Clauses 12.1 and 12.2, our liability to you in
contract, tort, negligence or otherwise arising out of or in connection with
this Agreement shall for any one incident of series of related incidents be
limited to the annual fees paid by you to us in the year in which the
liability first arose.

12.4 We are under no obligation to edit, review or modify Customer
Information or Third Party Content. However, we reserve the right to remove
any Customer Information or Third Party Information without notice. For the
avoidance of doubt we do not pro-actively monitor messages that you may post
on our managed sites, but we reserve the right to remove such message at our
sole discretion.

12.5 You acknowledge that in providing the Broadband Services we are
not engaging in "investment business" (as defined in the Financial Services
Act 1986 (FSA) nor is any Content intended to be an "investment
advertisement" for FSA purposes.

12.6 We exclude all liability of any kind in respect of:

12.6.1 Customer Information, Third Party Content, Content and any
other material on the Internet which can be accessed using the Broadband
Services and we are not responsible in any way for any goods (including
software) or services provided by third parties advertised, sold or
otherwise made available by means of the Broadband Services or on the
Internet;

12.6.2 the accuracy, completeness or suitability for any purpose of
any Content; and

12.6.3 the acts or omissions of other providers of telecommunications
or Internet services (including Domain Name registration authorities) or for
faults in or failures of their equipment.

13 Termination of this Agreement

13.1 We may at any time (whether during the Initial Period or
otherwise) terminate this Agreement giving 90 days notice to you.

13.2 We may at our sole discretion terminate this Agreement or suspend
the Broadband Services immediately, in the event that;

13.2.1 we are directed by any competent authority to cease the
provision of the Broadband Services or any part of it; or

13.2.2 you fail to pay any charges for the Broadband Services; or

13.2.3 any credit card or direct debit details submitted by you for
payment are found not to be or cease to be valid; or

13.2.4 if you use the Broadband Services in contravention of any of
Clauses 5, 7 and 9; or

13.2.5 your contract with us or your telecoms provider for your direct
analogue exchange line is terminated; or

13.2.6 our contract with any third party who assists us in providing
the Broadband Services to you is terminated; or

13.2.7 we become aware of any breach of third party Intellectual
Property Rights caused by the Customer Information or the Third Party
Content.

If we suspend the Broadband Services in accordance with this Clause
13.2, we may, at any time following such suspension (and if the circumstance
in Clause 13.2 remains) immediately terminate the Agreement.

13.3 You have the right to cancel this agreement by giving written
notice within 14 days from the date of acceptance of this agreement. If we
have supplied you with a Modem you must either pay for the Modem or return
such Modem to us (at our request) in the prepaid postage package we send you
and we will refund you for any payment received from you for such Modem if
returned in perfect working order.

13.4You may terminate this Agreement on giving at least 1 month's
notice, such notice to be effective no earlier than the end of the Initial
Term (which is the first 12 months period from the Commencement Date). You
must pay all Fees for the Broadband Services until the date on which the
termination notice expires.

13.5 You may also terminate this Agreement at any time on giving at
least 1 month's notice if you move to a new address to which it is not
possible to provide the Broadband Services on production of proof of your
changed address.

13.6 Either party may terminate this Agreement immediately, on notice,
if the other commits a material breach of this Agreement and fails to remedy
the breach within 28 days of a written notice to do so.

13.7 Upon termination or expiration of this Agreement registration to
any of our services or those of third parties provided in the course of
and/or for the purposes of the Broadband Services will cease at such time as
the provision of the Broadband Services ends.

14 Force Majeure

14.1 Neither party will be liable to the other for any failure to
deliver the Broadband Services or for any breach by it of this Agreement,
where such failure or breach is due to a reason outside the reasonable
control of such party, including, but not limited to: lightning,
exceptionally severe weather, fire, explosion, war, industrial disputes,
government action or regulation or national or local emergency. If such
failure to deliver continues for more than 3 months after the commencement
of such failure, then either party may terminate this Agreement on notice in
writing to the other party.

15 General Provisions

15.1 We may change the provisions of this Agreement (including the
charges) at any time, provided that we will give you notice of the changes
at least 14 days before the change is to take effect at which time you may
terminate this Agreement if the change materially affects the Broadband
Services.

15.2 This Agreement represents the entire understanding between the
parties in relation to its subject matter and supersedes all agreements and
representations made by either party, whether oral or written.

15.3 The parties acknowledge and agree that:

15.3.1 the parties have not been induced to enter into this Agreement
by any representation, warranty or other assurance not expressly
incorporated into it; and

15.3.2 in connection with this Agreement the parties' only rights and
remedies in relation to any representation, warranty or other assurance are
for breach of this Agreement and that all other rights and remedies are
excluded, except in the case of fraud.

15.4 This Agreement does not create any rights under the Contracts
(Rights of Third Parties) Act 1999 that are enforceable by any person who is
not a party to it but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.

15.5 Notices given under this Agreement must be in writing and may be
delivered by hand, courier or first class post, by fax or e-mail to the
following addresses:

(a) to us at the relevant address provided during the registration
process for Tiscali or any alternative address which Tiscali notifies to
you;

(b) to you at the relevant postal or email address provided as part of
the details which you submit during the registration process or any
alternative address that you provide to Tiscali via the 'My Account' pages.

15.6 Neither party may assign sub-contract or transfer any of their
rights or obligations under this Agreement without the prior written consent
of the other party, except that Tiscali may assign or transfer its rights
and/or obligations to any Affiliate from time to time without the prior
written consent of the Supplier.

15.7 If any part, term or provision of this Agreement is held to be
illegal or unenforceable the validity or enforceability of the remainder of
this Agreement will not be affected.

15.8 If either party delays in acting upon a breach of this Agreement
that delay will not be regarded as a waiver of that breach. If either party
waives a breach of this Agreement that waiver is limited to that particular
breach.

16 Law

16.1 This Agreement will be governed by and construed and interpreted
in accordance with the law of England and Wales and the parties submit to
the exclusive jurisdiction of the English Courts.

17 Paying by Direct Debit

17.1 All the normal Direct Debit safeguards and guarantees apply. No
changes in the date, frequency or amount to be debited can be made without
notifying you at least 10 working days in advance of your account being
debited. In the event of any error, you are entitled to an immediate refund
from your Bank or Building society. You have the right to cancel a Direct
Debit Instruction at any time simply by writing to your Bank or Building
society, with a copy to us.

He would have to claim on his house insurance, as the modem didn't fail due
to hardware failure but external means

"Steve Harvey" <(E-Mail Removed)> wrote in message
news:417d3275$0$15428$(E-Mail Removed)...
> Hi,
> My next-door neighbour has subscribed to the Tiscali 150K service and
> was supplied with a Sagen USB Modem. Unfortuately during a recent electrical
> storm, the ADSL stopped working and he has now noticed that there is some
> signs of melting on the plastic case of the modem. As I am righ next door
> and presumably connected to the same cabinet, my Router was lucky not to
> succumb to the same fate.
>
> The terms of the contract [below] do not say anything about who owns the
> modem (Tiscali or the subscriber) but I presume that is is under warranty
> however I am not aware whether modem warranties include/exclude storm damage
> ( I know that there is no subscriber-side surge protector on the line)
>
> What si the chance of him getting it replaced FOC ???

If the modem is less than a year old, or covered by a longer warranty I would
send it back. You won't be the first person to get lucky. Pity about the melted
plastic though!

--

Michael Chare

On Mon, 25 Oct 2004 18:05:57 +0100, "Steve Harvey"
<(E-Mail Removed)> wrote:

>Hi,
> My next-door neighbour has subscribed to the Tiscali 150K service and
>was supplied with a Sagen USB Modem. Unfortuately during a recent electrical
>storm, the ADSL stopped working and he has now noticed that there is some
>signs of melting on the plastic case of the modem. As I am righ next door
>and presumably connected to the same cabinet, my Router was lucky not to
>succumb to the same fate.
>
> The terms of the contract [below] do not say anything about who owns the
>modem (Tiscali or the subscriber) but I presume that is is under warranty
>however I am not aware whether modem warranties include/exclude storm damage
>( I know that there is no subscriber-side surge protector on the line)
>
> What si the chance of him getting it replaced FOC ???
>
<snip>

From Tiscali or the manufacturer, nil.

From his home contents insurance, almost certainly (but his excess may
be more than the cost of a replacement).

When he gets a replacement, probably a good idea to also get a surge
protecting lead (with telephone jack). They are not expensive, and can
save a lot of expensive damage.
--
Alex Heney, Global Villager
A bad day on skis always beats a good day in the office!

To reply by email, my address is alexATheneyDOTplusDOTcom

"Steve Harvey" <(E-Mail Removed)> wrote in message
news:417d3275$0$15428$(E-Mail Removed)...
> Hi,
> My next-door neighbour has subscribed to the Tiscali 150K service and
> was supplied with a Sagen USB Modem. Unfortuately during a recent
electrical
> storm, the ADSL stopped working and he has now noticed that there is some
> signs of melting on the plastic case of the modem. As I am righ next door
> and presumably connected to the same cabinet, my Router was lucky not to
> succumb to the same fate.
>


Steve

This happened to a friend of mine(and me).
The lightening took out the alcatel frog (mine), his DELL Inspiron
motherboard and
the DELL power adapter.
He had to claim on his insurance but they paid - no argument.

eric

--
Remove the dross to contact me directly