BRIGHTER CONNECTIONS MANAGED SERVICES LTD
TRADING AS MANAGEDSERVICES.CO.UK
TERMS AND CONDITIONS OF BUSINESS
PLEASE NOTE THE LIMITATION OF LIABILITY PROVISIONS IN PART A (GENERAL) CONDITION 13.
PART A (GENERAL)
- DEFINITIONS & INTERPRETATION
1.1 In these terms and conditions, the following words and phrases shall have the meanings ascribed to them below:
“Charges” means the charges detailed in the Quotation
“Conditions” means these terms and conditions;
“Commencement Date” means the date detailed in the Quotation following the receipt of a Purchase Order
“Contract” means the contract between the Supplier and the Customer relating to the supply of Goods and/or Services, comprising the Quotation, and these Conditions along with any Special Conditions and Proposal if applicable;
“Customer” means the company, person or party detailed in the Quotation who purchases Goods and/or Services from the Supplier;
“Data Protection Legislation” means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;
“Expenses” means the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Supplier and agreed in writing in advance with the Customer in connection with the Services;
“Force Majeure Event” means an event which arises in circumstances beyond the reasonable control of the Supplier including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other employment disputes (whether or not relating to either party’s workforce), within 72 hours of any Services commencing , excluding weekends, or restraints or delays affecting carriers
“Goods” means the goods agreed in the Contract to be supplied to the Customer by the Supplier;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Minimum Term” means the term of the Support Services and/or Other On-Going Services as detailed in the Quotation;
“One-Off Services” means the general services contemplated by Part C of the Conditions and detailed in the Quotation, including without limitation, one-off development, installation, configuration and cabling services;
“Other On-Going Services” means the services contemplated by Part E of the Conditions and detailed in the Quotation;
“Quotation” means the document detailing the particulars of the Contract, which quotation may incorporate (where applicable) any Service Description, Proposal and Special Conditions;
“Payment Plan” means the extension of a line of credit to the Customer by the Supplier, the details and existence of which are evidenced in the Quotation (by way of instalment, credit terms or payment plans) or correspondence submitted by the Supplier to the Customer;
“Payment Terms” means the terms for payment of the Charges (if any) detailed in the Quotation;
“Proposal” means the technical or functional specification (if any) relating to any of the Services;
“Services” means the General Services and/or Support Services and/or the Other On-Going Services;;
“Service Levels” means the service levels (if any) detailed in the Quotation
“Special Conditions” means the special terms and conditions (if any) detailed in the Quotation;
“Start Date” means the date detailed in the Quotation on which the Support Services or other On-Going Services are deemed to commence;
“System” means the Customers computer system and infrastructure, as detailed in the Quotation;
“Support Services” means the support services contemplated by Part E of the Conditions and detailed in the Quotation;
“Supplier” means Brighter Connections Managed Services Limited (company number 9974132), whose registered office is at Edgerton Villa, 22-24 Edgerton Road, Huddersfield, HD3 3AD.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to the parties shall be a reference to the Supplier and Customer.
1.5 Condition headings do not affect the interpretation of these terms and conditions.
- APPLICATION OF CONDITIONS
2.1 Subject to any variation under condition 6, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any quotation, confirmation of order, specification, other document, trade custom, practice or course of dealing), which, together with the Quotation, constitutes the entire agreement and understanding between the parties in respect of the matters dealt with in it, superseding any previous agreement between the parties relating to such matters.
2.2 Any variation to these Conditions and any representations about the Contract shall have no effect unless expressly agreed in writing and signed by the parties.
- BASIS OF SUPPLY
3.1 The Quotation is valid for that number of days specified in the Quotation or if no such number of days is specified, seven (7) days from the date of issue. The Supplier may withdraw the Quotation at any time by written notice to the Customer.
3.2 Following written acceptance of a Purchase Order the despatch of any Goods and/or the commencement of any Services shall be conclusive evidence of the existence of the Contract.
3.4 Unless otherwise provided for in the Quotation, the Customer acknowledges that in entering into the Contract, it has:
(a) not relied on any statement, promise or representation made or given by or on behalf of the Supplier; and
(b) fully satisfied itself that the Goods and/or Services are suitable for its own requirements.
4.1 The description and/or quantity of the Goods and/or Services shall be detailed or referenced in the Quotation.
4.2 All samples, drawings, descriptive matter, scoping and advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
4.3 Any typographical, clerical or other error or omission in the Quotation, Service Description, any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4.4 In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which have not first been confirmed in writing by the Supplier.
4.5 Any advice or recommendation given by the Supplier or its employees, contractors or agents to the Customer or its employees, contractor’s or agents about the Goods and/or Services which are not confirmed in writing by a director of the Supplier is followed or acted on entirely at the Customer’s own risk.
- SCOPE AND CONFLICT
5.1 The terms and conditions detailed in this Part A (General) shall always apply to the Contract.
5.2 If, with reference to the Quotation, the Contract encompasses the supply of:
(a) Goods, the additional terms and conditions detailed in Part B of the Conditions (Supply of Goods) shall also apply to the Contract;
(b) One-Off Services, the additional terms and conditions detailed in Part C of the Conditions (Supply of General Services) shall also apply to the Contract
(c) Support Services, the additional terms and conditions detailed in Part D of the Contract (Support Services) shall also apply to the Contract
(d) Other On-Going Services, the additional terms and conditions detailed in Part E of the Contract (Supply of Other On-Going Services) shall also apply to the Contract;
5.3 If the Quotation incorporates or references a Proposal, then such Proposal shall be incorporated into the Quotation and shall form part of the Contract;
5.4 If there is any conflict, inconsistency or ambiguity when interpreting the Contract, the following order of precedence shall always apply:
(a) firstly any Special Conditions;
(b) secondly the Quotation;
(c) thirdly, any Proposal;
(d) fourthly, the terms and conditions detailed in Parts B, C, D and E of the Conditions, as applicable;
(e) finally, the terms and conditions detailed in Part A of the Conditions (General).
- CHANGE CONTROL
6.1 If either party requests a change to the scope or performance of the Contract, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Supplier’s price arising from the change;
(c) any other impact of the change on the terms of the Contract.
6.2 The Customer shall within a reasonable time, review the Change and confirm acceptance or non-acceptance of the Change.
6.3 If the Customer wishes the Supplier to proceed with any change pursuant to this condition 6, the Supplier has no obligation to do so unless and until the parties have agreed in writing on any necessary variations to the price, any implementation plan and any other relevant terms of the Contract to take account of the change.
- TIME FOR PERFORMANCE
7.1 Any dates or times specified by the Supplier in a Quotation or accompanying communication and subsequently acknowledged by the Customer verbally or in writing are deemed the time for the performance of the Services.
- CUSTOMER OBLIGATIONS
8.1 The Customer shall fully use reasonable endeavours to co-operate with the Supplier in its performance of the Contract.
8.2 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six (6) months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier.
8.3 Any consent given by the Supplier in accordance with condition 8.2 shall be subject to the Customer paying to the Supplier a sum equivalent to twenty percent (20%) of the then current annual remuneration of the Supplier’s employee or sub-contractor or, if higher, twenty percent (20%) of the annual remuneration to be paid by the Customer to such employee or sub-contractor.
8.4 The Customer shall provide the Supplier in a timely manner with:
(a) access to the System, premises and data, and such office accommodation and other facilities, as is requested by the Supplier;
(b) information as the Supplier may request, and ensure that such information is accurate in all material respects.
8.5 Where the Services are performed at the Customer’s premises or any third premises site, the Customer shall be responsible (at its own cost) for preparing such premises by:
(a) obtaining any necessary easements, wayleaves, permissions, consents or licenses, including without limitation, planning permission pursuant to the Town and Country Planning Act 1990 and building regulations consent pursuant to the Buildings Act 1984 and all associated building regulations legislation or analogous regulations in the country in which the installation of the goods is to be performed;
(b) providing suitable secure space for keeping tools, fittings and materials;
(c) making electrical power, sanitary facilities and running water available to the Supplier;
(d) ensuring that its employees, agents or contractors do not interfere with anything installed pursuant to the Services;
(e) complying with all obligations and responsibilities under the Health and Safety at Work Act 1974, the Management of Health and Safety at Work Regulations 1999, the Construction (Design & Management) Regulations 2007, any approved codes of practice, industry guidance, standards and best practice, each as amended from time to time.
8.6 The Customer shall at all times take all steps which a reasonable and prudent person responsible for computer systems and computer data would take to maintain the integrity, performance and accuracy of the System and all data stored or accessed by it, including but without limitation, taking regular backups of all data software and configuration, and having available suitable alternative computerised and manual systems.
- DATA PROTECTION
To the extent that the Supplier processes personal data (where “Personal Data” has the meaning as defined in the Data Protection Legislation) of the Customer within the meaning of the Data Protection Legislation, the provisions of this clause 9 shall apply:
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, this clause 9 constitutes a written confirmation that the Customer is the data controller and the Supplier is the data processor (where “Data Controller” and “Data Processor” have the meanings as defined in the Data Protection Legislation).
9.3 Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.
9.4 Without prejudice to the generality of clause 9.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (“Applicable Laws”). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 9.
9.5 The Customer does not consent to the Supplier appointing any third party processor of Personal Data under this agreement.
9.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
10.1 The Charges shall be deemed to be in UK £s (pounds sterling) and, shall include value added tax (where applicable) at the applicable current rate and any pre-approved expenses, which shall be payable in addition.
10.2 Unless otherwise detailed in the Quotation:
(a) the Services shall be supplied on a time and materials basis;
(b) the Charges detailed in the Quotation;
(c) the Charges shall be calculated in accordance with the Supplier’s standard daily fee rates as detailed in the Quotation;
(d) the Supplier’s standard daily fee rates are calculated on the basis of an eight (8) hour day worked between 9.00 am and 5.00 pm on weekdays (excluding weekends and public holidays);
(e) the Supplier shall be entitled to charge at an overtime rate of at least one hundred and thirty three percent (133%) of the normal rate for part days and for time worked by staff engaged in the delivery of the Services outside the hours referred to in condition 10.2(d) on a pro-rata basis, any such overtime to be communicated in writing in advance to the Customer.
(f) the Supplier shall ensure that all staff engaged in the delivery of the Services complete time sheets recording time spent on the Services (which the Supplier may require the Customer to counter sign where appropriate) and the Supplier shall use such time sheets to calculate the amount of the Charges.
- INVOICING AND PAYMENT TERMS
11.1 If the Customer does not have the benefit of a Payment Plan the Customer shall settle undisputed Supplier’s invoices within 30 days of receipt.
(a) Where there are no Payment Terms, at the end of each calendar month, the Supplier shall issue an invoice for the payment of any Charges and pre-approved Expenses incurred in that month, which the Customer shall pay within thirty (30) days of receipt.
11.3 If the Customer fails to pay the Supplier any undisputed sum due pursuant to the Contract, without prejudice to any other right or remedy available to the Supplier.
(a) the Customer shall be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. The Supplier reserves the right to claim interest, compensation and costs under the Late Payment of Commercial Debts (Interest) Act 1998;
(b) the Supplier may suspend further performance of the Contract;
(c) exercise a general lien on all goods and property belonging to the Customer in its possession, exercisable in respect of all sums lawfully due from the Customer to the Supplier. The Supplier shall be entitled, on the expiry of fourteen (14) days’ notice in writing, to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
12.1 Without prejudice to any other rights the parties may have under the Contract, at any time during the Contract, either party shall have the right to terminate the Contract on written notice to the other party with immediate effect, if the other party
(a) breaches any of the Conditions and such breach is not capable of remedy after reasonable consultation;
(b) breaches any of the Conditions and if such breach is remediable, fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;
(c) (being a person) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;
(d) (being a body corporate) shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors;
(e) suspends or ceases or threatens to suspend or cease, to carry on all or a substantial part of its trade or business; or
(f) encumbers or in any way charges any of the Services.
12.2 Termination of the Contract (however occasioned) shall not affect any accrued rights or liabilities of either party.
- QUALITY OF SERVICES
13.1 The Supplier warrants that:
(a) the Services shall be performed using reasonable skill and care within the meaning of the Supply of Goods and Services Act 1982.
13.2 The Supplier shall not be liable for a breach of the warranty in condition 12.1 unless the Customer gives the Supplier written notice of the defect in the Services within seven (7) days of their performance.
13.3 Subject to conditions 12.1 and 12.2, if any of the Services do not conform with the warranty in condition 12.1, the Supplier shall upon agreement with the Customer either perform the Services or seek agreement as to a partial refund related to the original price of such Services.
13.4 The Supplier shall have no further liability and the Customer shall have no claim for a breach of the warranty in condition 12.1, if the Supplier fully complies with this condition 12.
- LIMITATION OF LIABILITY
14.1 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of these Conditions;
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
14.2 Nothing in these conditions excludes or limits the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence;
(b) under section 2(3), Consumer Protection Act 1987 or section 12 of the Sale of Goods Act 1979;
(c) for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
14.3 Subject to conditions 13.1 and 13.2:
(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed a sum of money which is equal to:
(i) the Charges, where the Contract only encompasses the supply of Goods;
(ii) two million pounds (£2,000,000) subject to the Supplier being able to recover such amount from its insurer, where the Contract encompasses the supply of Services and/or Goods.
14.4 Except as otherwise provided for under these Conditions, all other warranties, conditions and other terms implied by statute (including the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982) or common law are, to the fullest extent permitted by law, excluded from the Contract.
- CONFIDENTIALITY AND SUPPLIERS PROPERTY
15.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
15.2 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
15.3 This condition 14 shall survive termination of the Contract, however arising.
- INTELLECTUAL PROPERTY RIGHTS
16.1 All Intellectual Property Rights in any deliverables created by the Supplier in its performance of the Contract shall remain vested in the Supplier or its licensors, save where explicitly requested by the Customer and acknowledged in writing by the Supplier.
16.2 Neither party shall acquire or claim any title to any of the other’s Intellectual Property Rights and will not, at any time, do, or omit to do, anything which is likely to prejudice the other’s ownership of such Intellectual Property Rights.
- UNFORSEEABLE DELAYS
17.1 The Supplier reserves the right to defer the performance of each Contract (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to a Force Majeure Event.
- REGULATORY COMPLIANCE
18.1 If a licence, consent, permission or any government or other authority is required in relation to the Contract, the Customer shall obtain the licence or consent at its own expense and if requested, produce the evidence to the Supplier on demand. Failure to obtain any licence or consent shall not entitle the Customer withhold or delay payment or terminate the Contract.
19.1 All communications between the Supplier and the Customer regarding the Contract shall be either via email, e-commerce portal, fax, or in writing and delivered by first class post to the nominated trading office, failing that:
(a) (in case of communications to the Supplier) its registered address or any other address notified in writing from time to time; or
(b) (in the case of the communications to the Customer) the address detailed in the Quotation or any other address notified in writing from time to time.
- DISPUTE RESOLUTION
20.1 In the event of any bona fide dispute or difference arising between the parties in connection with the Contract (excluding any dispute relating to non-payment of the price by the Customer, for whatever reason), the parties shall attempt to resolve such dispute or difference in good faith and without recourse to legal proceedings.
20.2 If the parties are unable to resolve such dispute or difference within fourteen (14) days of initial discussions between the parties taking place, either party may request the other in writing that the matter be referred to senior representatives of the parties with authority to settle the dispute, who shall attempt to resolve the dispute within thirty (30) days of the written request to do so.
20.3 If the dispute or difference is not resolved as a result of a meeting of the senior representatives of the parties pursuant to condition 18.2 above, or if no meeting of the senior representatives occurs within the prescribed time periods set out in that condition, either party may request the Centre for Dispute Resolution (“CEDR”) in writing to appoint an independent expert.
20.4 If either party so requests CEDR to appoint an independent expert, such party must instruct CEDR to ensure that the expert:
(a) acts as an expert and not an arbitrator;
(b) affords the parties the opportunity within reasonable time limits to make representations to him;
(c) informs each party of the representations of the other;
(d) affords each party the opportunity within reasonable time limits to make submissions to him on the representations of the other; and
(e) notifies the parties of his decision, with reasons as quickly as practicable.
20.5 The fees and expenses of the expert including the cost of his nomination shall be borne equally by the parties who shall bear their own costs as to the submission and determination of the dispute or difference by the expert, save as where otherwise directed by the expert.
20.6 The expert determination is to be conclusive and binding on the parties except where there is fraud or a manifest error or on a matter of law.
21.1 The Supplier may assign the Contract or any part of it to a Brighter Connections Group company or approved third party as part of the normal course of business when delivering products and services. This is the case other than by prior written agreement with a client.
21.2 The Supplier shall have the right to sub-contract the performance of this Agreement. The obligations and liabilities under this Agreement remain with the Supplier.
21.3 Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not.
21.4 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
21.5 Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
21.6 Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
21.7 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) other than as expressly set out in the Contract. The only remedy available to either party in respect of any such statement, representation, warranty or understanding shall be for breach of contract under the terms of the Contract.
21.8 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
21.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
PART B (SUPPLY OF GOODS)
- SUPPLY OF GOODS
1.1 In consideration for the payment of the relevant Charges, the Supplier shall supply the Goods.
2.1 Unless otherwise agreed in writing, delivery of the Goods shall be made to the Customer’s address stipulated on the Quotation.
2.2 The Supplier shall use best endeavours to ensure delivery of goods on the dates specified. If no dates are so specified, delivery shall be within a reasonable time.
2.3 If the Customer fails to accept delivery of any of the Goods on an agreed delivery date, or the Supplier is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) the Supplier may store the Goods until delivery, whereupon the Customer shall be liable for reasonable costs and expenses (including, without limitation, storage and insurance).
2.4 If the Supplier is requested to re-deliver the Goods following a failed delivery in accordance with condition 2.4, the Supplier reserves the right to make an additional charge for such re-delivery.
2.5 The Supplier may make partial deliveries and each delivery is to be regarded as a separate contract and due for payment on the advised terms.
2.6 The Supplier shall not be deemed liable for non-delivery of Goods where it is able to provide supporting information of Goods shipped and a proof of delivery that the Goods were signed for by the Customer or its nominated agents. The Customer has 5 working days to notify the Supplier in writing of any delivery discrepancies along with accompanying details.
2.7 Any liability of the Supplier for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro-rata contract rate against any invoice raised for such Goods.
- RISK & RETENTION OF TITLE
3.1 The Goods are at the risk of the Supplier, until delivery in accordance with condition 1, whereupon risk in the Goods shall transfer in full to the Customer.
3.2 Full legal and beneficial title and ownership of the Goods shall pass to the Customer once the Supplier has received in full (in cleared funds) all sums due to it in respect of:
(a) the Contract; and
(b) all other sums which are or which become due to the Supplier from the Customer under any other contract or account.
3.3 Until title and ownership of the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier’s bailee;
(b) store the Goods in a readily identifiable manner (at no cost to the Supplier);
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Supplier’s behalf for their full price against all risks to the reasonable satisfaction of the Supplier. On request the Customer shall produce the policy of insurance to the Supplier.
3.4 The Supplier shall be entitled to recover payment for the Goods notwithstanding that legal and beneficial ownership and title of any of the Goods has not passed from the Supplier.
3.5 The Customer’s right to possession of the Goods shall terminate with immediate effect if the Contract is terminated by the Supplier in accordance with these Conditions and the Supplier has not been paid the price in respect of such Goods.
3.6 The Customer grants the Supplier, its agents and employees an irrevocable licence to enter any premises on reasonable notice where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated in accordance with condition 3.5, to recover them.
- RESTOCKING OF GOODS
4.1 Supplier is entitled to charge a re-stocking fee for goods the Customer may wish to return by prior agreement with the Supplier. Upon agreement this would be conditional on:
(a) the Goods being returned in perfect condition with the manufacturer’s packaging as far as is reasonable within ten (10) days of the date of delivery; and
(b) the manufacturers, distributors or suppliers from whom the Supplier sourced the Goods give their consent to such return in the event this is a condition of a restocking agreement made in writing by an authorised officer of the Supplier.
5 LEASED GOODS
5.1 If the Quotation indicates that the Goods are to be leased or hired to the Customer:
(a) title and ownership of the Goods shall never pass to the Customer;
(b) the Customer shall take good care of the Goods and insure them for the benefit of the Supplier;
(c) the Goods shall be leased to the Customer for the term detailed in the Quotation;
(d) upon termination of the Contract, the Customer shall return the Goods to the Supplier, in full working order and without delay.
- ADDITIONAL WARRANTIES
6.1 The status of the Supplier is that of a value added re-seller and service provider and not a manufacturer of Goods. Accordingly, to the fullest extent permissible by law, unless otherwise specified in the Contract, the Supplier is unable to offer any warranties or guarantees of any kind whatsoever in respect of the Goods.
6.2 The Goods may be sold with a manufacturer’s or wholesaler’s warranty, guarantee or similar or equivalent protection, details of which shall be dispatched with the Goods and may be requested from the Supplier in advance of delivery. In which case, the Supplier shall for a period of twelve (12) months from the date of delivery, use its best endeavours to:
(a) procure that the Customer receives the benefit of any manufacturer’s or wholesaler’s warranty, guarantee or similar or equivalent protection in respect of the Goods supplied and assist the Customer in the completion of all documentation and the taking of all steps to perfect the Customer’s title to any such protection;
(b) assist the Customer in any warranty claims made by the Customer.
- INTELLECTUAL PROPERTY RIGHTS
7.1 If the Supplier applies any process to the goods in accordance with the Customers written instruction, the Customer shall indemnify and keep indemnified the Supplier against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by the Supplier in connection with, or paid or agreed to be paid by the Supplier in settlement of, any claim for infringement of any third party Intellectual Property Rights which results from the Supplier’s use of the Customer’s specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of the Supplier.
7.2 Each Party will use the other’s Confidential Information solely to perform its obligations under this Agreement. Accordingly, each Party will disclose the other’s Confidential Information only to those of its agents, contractors, and employees who need to know the information for purposes of performing this Agreement, provided that they are legally bound, in writing, not to disclose the other Party’s Confidential Information except as permitted by this Agreement.
Each Party will hold the other Party’s Confidential Information in confidence and will take all reasonable security measures to protect the other’s Confidential Information against unauthorized disclosure. All Confidential Information transmitted, or made available by Customer to the Supplier which contains personal information or other sensitive Customer data will be encrypted by Customer so that it is unintelligible before Customer transmits, or makes available, such Confidential Information to the Supplier.
Each Party will give the other prompt written notice if it learns of any unauthorised use, disclosure, theft, or other loss of the other’s Confidential Information; or, to the extent legally permitted, if disclosure of the other’s Confidential Information is being sought by legal process.
The obligations of confidentiality in this section (X) shall not extend to any matter which:
* is in or becomes part of the public domain otherwise than by reason of a beach of the obligations of confidentiality in this Contract
* the receiving party can show was in its written records and/or possession prior to the date of disclosure of the same by the disclosing party;
* is after the date of this Contract received without any duty of confidentiality from a third party independently entitled to disclose it free from any obligations of confidentiality; and/or
* is required by law or a regulatory authority to be disclosed provided that the receiving party gives to the disclosing party as much advance notice of the required disclosure as possible.
7.3 In relation to any third party proprietary software and user manuals supplied to the Customer (with or without the Goods), the Customer acknowledges that:
(a) it is buying only the media on which the software is recorded and the accompanying user manuals;
(b) nothing in these Conditions shall be construed as an assignment of any Intellectual Property Rights in the software or user manuals;
PART C (SUPPLY OF GENERAL SERVICES)
- SUPPLY OF GENERAL SERVICES
1.1 In consideration for the payment of the Charges, the Supplier shall supply the General Services.
PART D (SUPPLY OF MANAGED SERVICES AND SUPPORT SERVICES)
- DESCRIPTION AND OPERATION OF SUPPORT SERVICES
1.1 The Support Services may consist of hardware monitoring, undertaking fixes to the System and helpdesk services.
1.2 Managed Services (otherwise known as Cloud Services) may consist of applications and services that are primarily hosted in a data-centre, including, but not limited to a private hosting suite, private hosting domain or a co-location suite and surrounding infrastructure.
1.3 In order to deliver Support Services, the Supplier will obtain appropriate licences and permissions to allow it to provide the services using its own equipment from its own premises, via telecommunication with compatible Customer communications equipment. It will, however, be the responsibility of the Customer to ensure that the Supplier is entitled to make use of the communications equipment to perform the Support Services at no additional cost to the Supplier.
1.4 Support Services will be provided during the hours specified in the Quotation (“Working Hours”).
1.5 The Supplier will use its reasonable endeavours to comply with requests to provide Support Services outside Working Hours provided that at least 5 working days’ notice is given in writing of any request for such servic but will be entitled to charge the rate for outside Working Hours set out in the then standard price list or separate Quotation.
1.6 The Supplier will not be liable in respect of any defect in or delay in the Support Services to the extent that the same results from any inadequacies or defects in the System environment.
1.7 The Supplier reserves the right, but does not assume the obligation, to inspect the communications equipment used by the Customer to ascertain compliance with this Agreement or any laws, regulations or codes applicable to this Agreement or to the Customer’s data. In
the event of any non-compliance coming to its attention the Supplier shall be entitled to suspend provision of the Support Services until the non-compliance is rectified and if it is not rectified within 28 days notice of the non-compliance being served on the Customer it shall be entitled to terminate the Support Services and shall be and shall continue to be indemnified against all costs claims damages and expenses arising out of or in connection with any such non-compliance.
1.8 Requests for service will be made by Customer and the Supplier shall not be required to comply with any request made otherwise than by the Support Informant.
2.1 Support Services and Managed Services shall commence on the Start Date and shall continue (unless terminated earlier in accordance with Part A of the Conditions) for the Minimum Term
2.2 Unless the Customer has notified the Supplier in writing of its intention to terminate the Support Services or Managed Services at least three (3) months prior to the expiry of the Minimum Term, the Support Services or Managed Services shall at the end of the original expiry of the Minimum Term, automatically continue on a rolling three month basis (unless terminated earlier in accordance with Part A of the Conditions). Thereafter any termination is the remainder of the current three month period in which notice is given, plus a three months’ final term.
- SERVICE LEVELS
3.1 The Supplier shall use all reasonable endeavours to maintain and achieve the agreed Service Levels.
3.2 For the avoidance of doubt, any breach of any Service Levels which is caused directly or indirectly by any of the following shall not be considered a breach of the Service Levels or these Conditions, if it arises as a consequence of a:
(a) Force Majeure Event;
(b) fault or failure of the internet or any public telecommunications network;
(c) fault or failure of the Customer’s computer systems or networks;
(d) breach by the Customer of these Conditions; or
(e) scheduled maintenance activity, carried out in accordance with these Conditions;
(f) the improper use, operation or neglect of the System;
(g) the failure by the Customer to implement recommendations in respect of or solutions to faults previously advised by the Supplier;
(h) any repair, adjustment, alteration or modification of the System by any person other than the Supplier without the Supplier’s prior written consent
(i) the Customer’s failure to install or permit the installation upon the System a new release of any operating system software or other ancillary software recommended by the Supplier within the time limit for installation given by the Supplier;
(j) the failure of the Customer to run the System in accordance with the current best practice including without limitation taking full backups of data at frequent intervals; or the use of the System for a purpose for which it was not designed.
3.3 In the event that the Supplier fails to achieve the Service Levels, the Charges payable in respect of the Support Services, shall by way of compensatory payment, be reduced by that amount detailed in the Quotation
3.4 The Supplier and the Customer acknowledge that any compensation payable pursuant to condition 3.3 is not a penalty and represents a genuine attempt by the Supplier to readjust the Charges to reflect the value of the Services actually rendered.
PART E (ON-GOING SERVICES)
- SUPPLY OF SUPPORT SERVICES
1.1 In consideration for the payment of the Charges, the Supplier shall supply the Support Services or Managed Services as outlined in the services Quotation (proposal).
- DESCRIPTION AND OPERATION OF OTHER ON-GOING SERVICES
2.1 Any additional On-Going Services shall be detailed in the Quotation (proposal)
3.1 The Other On-Going Services shall commence on the Start Date and shall continue for the Minimum Term plus the required minimum termination period unless agreed otherwise in writing at least 90 days before termination date.
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