Terms and Conditions 3Rd Edition October 2013.
Terms and Conditions.
1.1 These Terms and Conditions together with the Proposal, the Client Charter or any other written document sent by Us to You (and which confirms in writing and change, modification addition deletion or edit to our agreement with you) shall form the whole agreement between You and Us and shall be binding upon the parties upon Your signature of any of Our documentation or in the event of Us acting in reliance of Your oral or written representations confirming Our the provision of Our Services.
1.2 Without limiting the generality of the foregoing, expressions used herein shall have the meanings attributed by the Proposal (provided that in the event of any conflict of interpretation or terms of the agreement) then the provisions set out herein shall prevail over the Proposal or other documents containing any agreements between You and Us.
Provision Of Services. For the avoidance of doubt the Proposal shall be that document upon which We outline and You agree amongst, other things the specifications for the Services which We will supply to You and the cost or price that You agree to pay in return for the Services. The Client Charter is that document which sets out the main obligations that We will from time to time owe to You and that You will from time to time owe to You.
2. Supply Of Services.
2.1 In return for the payment of the Fees and Expenses by You to Us We shall supply the Services (as herein after defined) for the Term on a non-exclusive basis, during general business hours required for Our efficient performance of the Services.
2.2 We shall supply the services as set out in the Proposal or as otherwise agreed in relation to ad hoc solutions. Subject always to the provision that in the event that you change any prior agreed Services then any such changes shall be confirmed in writing by Us either prior to Our undertaking of the different Services where ever practical. In the event however that urgent Services are supplied without prior written confirmation We shall confirm the provision of such Services within a reasonable time following the supply of such Services. Our written confirmation of Your instructions shall add or amend without the need for signature by You to Our agreement with You.
2.3 The term Services shall mean any and all of the Services supplied by Us at Your request and identified in the Proposal or otherwise requested by You (“the Services”).
2.4 The provision of the Services shall be carried out professionally and in accordance with Our agreement with You.
2.5 The provision of the Services shall take place at the Site or Sites communicated to Us and/or set out in Our Proposal in the event that Our Services are supplied on an ad hoc or emergency basis at the Site or Sites agreed or alternatively, at Our reasonable discretion any other place within One (1) hour travel from Our office. Any and all travel related costs shall be reimbursed by You on the production of receipts in accordance with Clause 3 below.
2.6 Where our Services include remote support, wherever technically feasible, and at Our option We shall provide Our Services by way of remote support at the Site or Sites rather than by way of Our actual physical presence. In the event that You are away from the Site or Sites we cannot guarantee that We shall be able to supply remote support to You.
2.7 Where Our support Services are reliant upon wired or wireless communication whilst You are away from the Site or Sites we shall use Our reasonable commercial endeavors to supply such services by way of alternative means however, we cannot be held responsible for such circumstances including but not limited to lack of signal or third party intervention or blocking, or technical limitations or any other matters or circumstances outside of Our control.
2.8 Where We provide Services at the Site or Sites You must ensure that such Site or Sites are supervised by an adult third party at all times. Such attending person must also have authority and capacity to sign off on any completion documentation supplied by Us.
2.9 In the event that We deem acting reasonably and in good faith that in the supply of Our Services on Site there may be a matter or circumstance where by We believe that any of Our employees, contractors or agents may either harmed of be in fear of harm or any illegal acts or otherwise may be taking place or for any other reasonable legitimate or legal reason We hereby reserve the right to suspend or withhold the provision of Our Services until such time as the site has been cleared or the circumstances surrounding the state of affairs has been removed.
2.10 In the event that You request any changes to the Services or services that are additional or over and above the Services no such change or addition shall be supplied unless requested by an authorised individual who has previously been identified by You either in the Proposal or otherwise as having such authority.
2.11 We aim to comply with the Client Charter as is commercially reasonable and to the extent that it applies to the Services.
3. Payment. Fees and Expenses.
3.1 You shall pay Us in full and without deduction all of the Fees and Expenses by way of telegraphic transfer to Our account details of which we shall communicate to You or by way of CREDIT/DEDIT/Bankers CARD and/or by way of other “recognized” form of electronic payment. Unless otherwise agreed in writing no other form of payment will be accepted as a discharge of Your obligations to pay the Fees and Expenses. For the avoidance of doubt Fees are the sums payable for the provision of Our Services (the “Fees”) and Expenses are those sums payable or reimbursable in relation to the provision of goods whether the same is hardware, software, peripherals or otherwise together with any authorised travel, accommodation and subsistence (The “Expenses”).
3.2 For the further avoidance of doubt the payment of Fees and Expenses shall be a condition precedent of this agreement and unless other wise agreed with regard to all Fees and Expanses time shall be of the essence.
3.3 We may require payment of Fees in advance before providing any of the Services . In the event that We are required to provide any of goods whether the same is hardware, software, peripherals or otherwise We shall require payment in advance unless otherwise set in the Proposal. Any further costs (i.e. any cost over and above those agreed in the Solutions Document) will at Our discretion acting at all time in good faith be billed directly to Your credit/debit/bankers card and by supplying Us the details of Your credit/debit/ bankers card You hereby confirm Your continuing authority for Us to take such payments provided always that such request has been made by an authorised person.
3.4 Where We have agreed credit terms for You Our invoices are due for payment in accordance with the Payment Terms as set out in the Proposal. In the event that no specific Payment Term has been agreed then payment is due fourteen (14) days from the date of Our invoice. In the event that payments remain outstanding beyond thirty (30) days from the date of Our invoice We hereby reserve the right to charge for any and all costs and expenses incurred in recovering late payments and to charge interest at eight percent (8%) above the Bank Of England base rate in force from time to time under the Late Payment of Commercial Debts (Interest) Act 1998 (or other applicable laws) as at the due date.
3.5 All Fees and Expenses set out in the Proposal relate only to the Services set out therein. In the event that You make any changes or additions to the Services additional Fees and Expenses that shall be charged over and above Your on going payment structure either by way of Invoice or added to the payment structure at Our discretion.
3.6 Unless otherwise specified, all Fees and Expenses quoted are exclusive of any and all applicable taxes that will be charged at the rate prevailing at the time of invoice.
3.7 All Expenses which shall include travel, subsistence and other out-of- pocket expenses shall be chargeable to the extent set out in the Proposal or in the event of the supply of ad hoc or emergency Services any such actual expenses incurred by Us provided always We shall furnish You with any and all valid receipts relating to such expenses. In the event that We are required to travel for greater than one (1) hour to the Site or Sites then travel will be charged at the rate set out in the Proposal or as otherwise explained to You.
3.8 If by the date of commencement of the Services, any relevant exchange rates fluctuate by more than five percent (5%) from any rates contained in the Proposal, We reserve the right to modify the Fees and Expenses accordingly.
3.9 In the event that any Fees and Expense remain un-paid for more than fourteen (14) days following the due date for payment We reserve the right to withhold or suspend the provision of the Services and/or any deliverables until Your total indebtedness to Us has been discharged.
3.10 In the event that We supply any goods whether the same is hardware, software, peripherals or otherwise to You ownership and title in and to such goods shall not pass until you have fully discharged any Expenses owed to Us.
4. Confidentiality and Data Protection.
4.1 We comply with all applicable privacy, data protection rules and regulations and shall maintain the confidentiality of all your confidential information disclosed to us in the course or providing the Services. Such confidentiality obligations shall not apply to information properly entering the public domain.
4.2 In the event that We shall be required to disclose information to any extent required by law, court order or the requirements of an applicable regulatory authority We shall endeavour to limit the extent of such disclosure.
4.3 We will deal with all data and other information in accordance with our Data Protection policy.
5. Term of the Contract.
5.1 Subscription/Proposal Clients.
5.1.1 The Term of Our agreement with You shall commence upon the execution of Our Solutions Document or otherwise in accordance with the provisions of Clause 1 above (the “Commencement Date”) and continue in force for three (3) calendar months and thereafter at three (3) month intervals until three (3) months written notice has been given to Us by You prior to the end of any applicable period of the Term.
5.1.2 In the event that either singularly or collectively during the Term You require the provision of new or additional Services then the Commencement Date shall re commence on the date at which the additional Services are provided to You.
5.1.3 Except in relation to the deletion of specific named e-mail accounts We are unable to down grade our Services during the Term.
5.2 One Off Clients and Ad hoc Solutions.
5.2.1 The Term of Our Agreement shall commence from Our agreement to supply Our services to You in relation to Your particular instructions and continue until completion thereof.
5.2.2 Cancellation. In the event that You enter in to any agreement with Us as a one off client being a consumer (as opposed to a business) then by way of the Consumer Protection (Distance Selling) Regulations 2000 You shall have the right to cancel any agreement that You have entered in to with Us for up to seven (7) working days of such agreement PROVIDED ALWAYS that We have not commenced the supply of any of Our Services to You. In the event that We have commenced during such seven (7) day period the supply of Services Your statutory rights under these regulations shall come to an end.
6.1 The Term shall commence on the Commencement Date and shall continue for the duration of the Term unless otherwise terminated in accordance with the provisions of this Clause 6.
6.2 You may terminate the agreement without notice in the case of:
6.2.1 a clearly proven act of gross misconduct of Ours that has not been remedied within thirty (30) days of Our receipt of written notification; or
6.2.2 or any serious or repeated material breach of Our obligations in the provision of the Services that has not been remedied within thirty (30) days of receipt of written notification.
Provided always that You have given and afforded to Us any and all relevant information and or
sufficient co-operation in order to remedy any such breach or series of breach’s.
6.3 We may terminate the Agreement without notice in the case:
6.3.1 of any repeated breach of the agreement that remains uncured for thirty (30) days following written notice of such breach or repeated breach. For the avoidance doubt any repeated failure to make timely payments of Fees and Expenses shall amount to such a breach;
6.3.2 in the event of Your use or utilize of Our systems to store or archive, send or receive, broadcast transmit or otherwise disseminate any illegal content in any form of media whether now known or herein after invented or devised or use or utilization for any illegal purpose what so ever; or
6.3.3 in the event of Your liquidation or bankruptcy.
7. Effects Of Termination or Suspension Of Services.
7.1 In the event of termination of this agreement by Us any and all outstanding Fees and Expenses shall be immediately payable whether or not such Fees and Expenses have been invoiced or otherwise. Where Services have been only partly completed Fees shall be calculated on a pro rata basis.
7.2 In the event of termination of this agreement by Us We reserve the right to immediately terminated any and all Services.
7.3 Where You have cancelled Your agreement in accordance with Clause 5.1 above We shall continue to supply all Services until the date of Termination.
8 Use of Third Party Contractors.
8.1 In the event that We, acting in good faith, feel that any part of the Services require the use of any third party, We may ask another contractor ("the Third Party Contractor") to carry out some or all of any Services which You have instructed Us to carry out for You.
8.2 We shall pay the charges of Third Party Contractors on Your behalf and recharge them to You. All such charges shall be repayable as an Expense. We will take all reasonable care in selecting and instructing any Third Party Contractor.
8.3 In the event that You require Us to supply the Services in conjunction or together with an existing third party supplier who is retained, paid or otherwise remunerated directly or indirectly by You then in the event that the supply of any Service is in any way affected by the action or inaction of Your appointed third party supplier We shall not be responsible for any loss or damage so caused. For the avoidance of doubt in the event of such delay You shall remain liable to pay Our Fees and Expense as agreed.
9. Force Majeure.
9.1 Neither party shall be held liable to the other for delays or other failure to perform its obligations occasioned by factors outside its control (including, by way of example only, industrial disputes, fire or accident, governmental act, riots, armed conflict, war, terrorism (including threatened acts of terrorism), adverse weather conditions (e.g. hurricanes or typhoons) or natural catastrophe) provided such party uses its best commercial endeavours to mitigate the effects of such factors outside its control. In the event of other factors unforeseen at the time of coming in to force of this agreement We shall endeavour to meet the proposed time schedule, but shall not be held liable for such delays.
10. Warranties and Indemnity.
10.1 You hereby warrant and undertake:
10.1.1 that You have the authority and capacity to enter in to this Agreement;
10.1.2 that You will afford every reasonable assistance to Us to allow us to fully and effectively perform the Services and all parties not contracted to this agreement but working with or along side Us or supplying other goods and/or services to You during the currency of the Term shall carry and maintain all appropriate insurances up to a commercially viable sum common in the relevant industry (such insurances shall include but not be limited to public, personal and professional indemnities as applicable);
10.1.3 You have valid software licences for Your operating system and all applications on Your computer(s) and any other hard ware. You shall supply details of the relevant licence keys in the event that We ask You for them;
10.1.4 You will back up all of Your Software, Data information and other files that are stored on any and all computer disks and drives You may have on Our request;
10.1.5 You agree to follow our reasonable instructions, including any security instructions which may include installing any equipment or software that we advise and following any other reasonable instructions that we may give you about the service we provide;
10.1.6 You shall give us access as follows.(i) Remote Support - We will ask You for consent to access Your computer using our remote access facility before or during the provision of Our Services. You must agree to this access to enable us to provide the service. If you do not, we may not be able to provide the service to you. (ii) Home Support - You must provide Us with full access to the computer(s) and / or peripheral(s) to be serviced and such access as is necessary to your residence. You agree to give your consent to do this and also agree to co-operate fully and provide Our technician with a safe working environment, working space and electrical power. In the event that We arrive at your premises and reasonably determines that you are unwilling or unable to provide the access, co-operation or safe working environment as described above, then service may be denied; and
10.1.7 to ensure that an adult is present during the provision of any Services. For any on-site services that we supply, a person of at least 18 years of age must be present the entire time that our technician is providing the services. In the event that We arrive at premises to provide our Services and no adult is present, service may be denied and a cancellation fee charged
11. Matters relating to Software
11.1 In the event that We supply You with any software whether such software is either the property of Ours or a third party You warrant and undertake:
11.1.1 to comply with any and all terms and conditions relating to the licence and Your use of such software including but not limited to any restrictions related to copying and modification of the software;
11.1.2 in the event that there are no specific licence terms, not to otherwise use or utilise the software for any purpose other than its intended purpose or to copy, sell or otherwise distribute any copies or modified versions of the software or modify or otherwise disassemble any part or parts thereof.
11.2 We will not under any circumstances supply to You any so called “cracked” or other non legal versions in part or whole of any software. In the event that We find the existence of any illegal software or other illegal activities on Your computer, hardware or other peripheral devises We hereby reserve the right (without being in breach of Our Confidentiality obligations to You) to report this to
11.3 In the event that You require Us to reinstall any of Your own software but do not have any disks or other media containing Your software, We cannot without proper confirmation that You have actually have a license to use such software install or reinstall such software.
12. Domain Names
12.1 In the event that We at Your request purchase, lease, licence or otherwise acquire any domain names or other URL addresses We shall have the right to a lien over such domain or URL until any and all Fees and Expenses have been fully discharged. For the avoidance of doubt such lien shall remain in place even after the Term until any and all indebtedness to Us has been fully discharged.
13. Our Warranties
13.1 We warrant and undertake:
13.1.1 that We have the authority and capacity to enter in to this agreement and to provide the Services which We have agreed to supply and provided;
13.1.2 We shall carry out the supply and provision of Our Services set out in the Proposal or in the event of an ad hoc solution using our reasonable commercial endeavours;
13.1.3 We shall carry and maintain all appropriate insurances up to a up to a commercially viable sum relevant to the services set out in the Proposal.
14.1 Except in so far as such liability has been or may legally excluded or limited hereunder each party shall indemnify the other against all and any loss, damages and costs (including reasonable legal fees) sustained by the innocent party arising out of any breach by the other of any its warranties and undertaking of this agreement.
15. Limitation Of Liability
15.1 Liabilities relating to Data.
15.1.1 For the purpose of this agreement Data shall include but not be limited to images and recordings of both moving and still audio and audio visual content, whether user generated or generated by third parties (received in the form of e-mail and data transfer) software programmes (as is presently understood by the IT industry) together with any other media and or documents whether compiled or not complied which may be held, transmitted or otherwise disseminated by way of servers remote or otherwise; portable storage units external or internal, optical media, archival media and any other peripherals the Data.
15.1.2 We shall not be liable for any loss caused (including but not limited to personal injury, emotional stress or damage to feelings, loss of earnings and any other economic loss suffered) by loss of Data whether archived, saved, stored whether locally or otherwise.
15.1.3 We shall not be liable for any loss of Data in transit (i.e so “Called black holing”) by way of instant messaging, SMS, ftp, MMS voice communication protocol, whether now known or hereinafter invented or devised.
15.1.4 We shall not be obliged to retain any Data for greater than thirty (30) days following the end of the Term unless otherwise agreed in writing between You and Us. Any and all Data shall be stored and or destroyed in accordance with Our Data Protection Policies.
15.1.5 In the event that any decision of any competent court or tribunal having jurisdiction over this agreement and these standard terms such total liability of Us and Our employees and/or agents in the context of this Agreement shall be limited to the amount which was paid for the Services supplied or the typical cost of retrieving any such Data.
15.2 Liabilities Relating to Installation.
15.2.1 For the purposes of this agreement Hardware shall include but not be limited to any computer, any peripherals, hard drive, ports, screens, keyboards, mouse together with Telephone connections, electricity supplies, satellite, cables, routers;
15.2.2 Where We are required to install any Hardware by You hereby confirm and understand that any and all such Hardware so installed by Us has been supplied directly to You by the manufacturer, producer or retailer of such Hardware and that any recommendation by Us as the appropriate Hardware is advice only and shall not be deemed to be a supply, distribution or procurement of the Hardware on Your behalf;
15.2.3 In the event that any loss or damage any person or property is caused by any Hardware whether before, in the course of installation or thereafter We shall have no liability for any such damage caused by the Hardware provided always that We have correctly installed such Hardware and any loss or damage caused was due to a clearly proven act or omission in the actual installation of such Hardware;
15.2.4 We shall be responsible for damage to exteriors or interiors of property including any only to the extent that any such damage has been directly caused by a clearly proven act or omission of Ours and only in relation to any specific installations that We have agreed to undertake.
15.3 Liabilities Relating to Third Parties.
15.3.1 Where You have appointed any third party contractor (including but not limited to architects, electricians, builders, joiners, carpenters, plasterers, carpet or flooring fitters, and/or other professional or non professional construction workers or advisors) prior to, during or after the Term You shall be fully responsible for and all acts or omissions that my cause loss or damage (including any professional or legal costs on an indemnity basis) to any person, property (including Us or our staff and any property or software owned or controlled by Us) Hardware, software or in the event of a suspension, “outages”, downtime or any other suspension of any services;
15.3.2 In the event that any services provided by any third party contractor are suspended, lost or suffer downtime for any reason due to Your or the third party suppliers act or omission prior to, during or after the Term You shall be fully responsible for and all acts or omissions that my cause loss or damage (including any professional or legal costs on an indemnity basis) to any person, property (including Us or our staff and any property or software owned or controlled by Us) Hardware or software.
15.4 Liability Relating to Software.
15.4.1 We shall not be liable for any loss or damage caused by any software (legal or corrupt) or viruses where the same has been supplied by You and/or any third party whether or not the same has been installed by Us, You or any third party; or
15.4.2 In the event that the software has been supplied by Us We shall only be liable to the extent that any such software was defective due to any act or omission of Us or Our employees and/or agents.
15.5 Liability relating to Professional Indemnity.
15.5.1 Where We give or proffer advice, buying advice or recommendations to You with regard to any third party services such as internet service provides or other service providers, purchases or opinions on any Software, Hardware or peripherals. We cannot be held liable for any loss or damage caused by any purchase, loan, lease or services supplied by such third party;
15.5.2 Where We give or proffer advice, buying advice or recommendation to You with regard to 3rd party services such as internet service provides or other service providers, purchases or opinions on any Software, Hardware or peripherals We shall endeavour to give best advice as at the time of such a request. Due to the nature of the technology and media markets however prices, information and recommendations are only valid for three (3) days from communication. For the avoidance of doubt We cannot be held liable for any loss or damage due to the changes of prices, circumstances or information.
15.5.3 In the event that We advise, direct or recommend to You any interactive media including but not limited to websites or links or other connection We cannot be responsible for the content of any such media and We strongly suggest that prior to commencing any viewing or interaction that You read their Terms and Conditions of Use.
15.6 Limitation In The event Of Liability.
In the event that We should found be liable for damages caused by the intentional or grossly negligent conduct of Us or Our legal representatives, managerial employees or any other vicarious agents and damages arising from death, bodily damage and damage to health from the assumption of a guarantee or from a procurement risk as well as any liability for damages pursuant to any Product Liability legislation. In the case of damage caused by the grossly negligent conduct of any other vicarious agents, the liability shall be limited to those damages which are typically to be expected within the scope of an agreement such as the present one. Any further liability under this Agreement shall be excluded.
16.1 Nothing in this agreement shall imply or otherwise create any joint venture or partnership between the parties.
16.2 We hereby the right to make changes to these Standard Terms from time to time.
16.3 Service of legal proceedings, notices or other documents will be accepted by each party by way of fax or by email provided always that an original copy is sent by personal service, courier or by first-class post. All contact details supplied to Us shall be deemed to be the correct addresses and Our service of documents to such addresses shall be sufficient evidence of such service. For the avoidance of doubt addresses shall include but not be limited postal, fax and e-mail.
16.4 The original language of this agreement is English. Any translation shall serve only as a guide to interpretation.
16.5 Each and every clause and sub clause herein shall be severable. If for any reason any court or other tribunal of competent jurisdiction should find any conditions, clauses or sub clauses invalid or unenforceable then any such decision shall not invalidate the validity, enforceability or operation of this agreement and the remainder of the conditions, clauses and sub clauses shall remain in full force and effect.
16.6 For the avoidance of doubt We hereby reserve and remain entitled to the benefit of all rights and remedies to which it may be entitled to by statute or other implied rights by common law.
16.7 This agreement will be governed by English law and will be subject to the exclusive jurisdiction of the English courts.
These Standard Terms and Conditions do not affect your statutory rights. If you require any advice or assistance we would suggest you contact your local branch of the Citizens' Advice Bureau or an independent legal advisor who should be able to help.