Standard Terms & Conditions of Sale of Computer Software, Services and Equipment
In these Conditions the following expressions have the following meanings:
- 'Customer' the person(s), firm or company named on the Accepted Quote
- 'Computer Software' any programs provided in connection with the Service, further details of which are set out in the Accepted Quote
- 'Conditions' the standard terms and conditions of sale as set out in this document
- 'Contract' the Accepted Quote and these Conditions
- 'DPA' Data Protection Act 1998
- 'Files' all files and data whether electronic or in hard copy, and other materials provided by the Customer in relation to the provision of the Computer Software and the Equipment
- 'Equipment' means all equipment sold by PC Net to the Customer pursuant to this Agreement
- 'Accepted Quote' a quote setting out the Computer Software and/or Equipment and/or Services to be supplied which has been accepted unconditionally by the Customer and PC Net where such are to be provided by PC Net Solutions (known as 'PC Net', company number 08242466) whose registered office is at Mercury House, Shrewsbury Business Park, Shrewsbury, Shropshire, SY2 6LG
- 'Materials' means any documentation, instructions, training manuals or other information stored in written or electronic form provided by PC Net to the Customer
- 'Price' the price to be paid by the Customer as specified in the Accepted Quote
- 'Services' the services to be provided by PC Net to the Customer as set out in the Accepted Quote
- 'Service Description' a description of the Services to be provided by PC Net which has been unconditionally accepted by the Customer and is contained in the Accepted Quote and consists of corrective maintenance and includes the necessary repair, adjustment, the supply and fitting of replacement parts, and the provision of all materials necessary for the satisfactory operation of the 'Equipment' but which in any event shall exclude : (a) Repairs rendered necessary by reason of damage caused by accident, carelessness or misuse by the 'Customer', (b) any other reasons outside PC Net's reasonable control e.g. failure or variation of electricity supply, image degradation of visual displays, (c) adjustments carried out by unauthorized persons, (d) changes and alteration in the Equipment's specifications, (e) Customer programming errors,(f) renewal of consumable supplies e.g. removable media, Printer ribbons, Printer heads, and Laser printer consumables, and (g) an unusually high level of maintenance caused in the reasonable opinion of PC Net by the age of the equipment or failure by the Customer to carry out appropriate levels of maintenance prior to PC Net's engagement by the Customer.
- 'Support and Maintenance Services' the maintenance of Equipment from time to time by telephonic and remote diagnosis of Equipment and service failures and regular help line support and the provision of updates.
- 'Term' consecutive periods of 12 months, subject to payment as set out in the Accepted Quote being received.
1.1 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced
1.2 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.3 In these Conditions headings will not affect the construction of these Conditions.
2. APPLICATION OF TERMS
2.1 These Conditions together with the Accepted Quote shall form the Contract to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 The Contract may only be varied by further agreement in writing (which will include by email if so accepted by PC Net) between the parties.
2.3 The Customer acknowledges that in entering into the Contract it is not relying on any representation or warranty, express implied or otherwise which is not reduced to writing and incorporated into the Contract
3. PAYMENT, EXPENSES AND INSTALLATION
3.1 The Price for the Computer Software and/or Equipment and/or Services shall be that set out in the Accepted Quote and unless otherwise agreed in writing shall be in pounds sterling and exclusive of value added tax. Service charges are payable in advance, no Services shall be provided until payment in cleared funds is received.
3.2 If any sum payable under the Contract is not paid within 7 days after the due date then (without prejudice to PC Net's other rights and remedies) PC Net reserves the right to:
3.2.1 suspend performance of the Services or any other obligations until all amounts owed have been paid; and/or
3.2.2 charge interest on such sum on a day to day basis (as well after as before any judgement) from the date or last date for payment to the date of actual payment (both dates inclusive) at the rate of 3 per cent above the base rate of Barclays Bank plc from time to time in force compounded quarterly. Such interest shall be paid on demand.
3.3 The Customer shall not be entitled to withhold payment of any amount due to PC Net under the Contract by reason of any disputed claim by the Customer in connection with the Contract and the Customer shall make all such payments without any deduction whether by way of set off, counterclaim, discount or otherwise.
3.4 The Customer agrees to pay all reasonable expenses for accommodation, subsistence and travel incurred by PC Net in supplying any professional services at premises other than PC Net' own premises. If any Equipment is located outside the UK at the time support is requested, PC Net will not be obliged to provide those Services.
3.5 PC Net will use all reasonable endeavours to achieve installation by any specified or requested date, but each such date is to be treated as an estimate only and time shall not be of the essence. Where payment is to be made by the Customer before installation of the Equipment, PC Net may withhold installation until such payments have been made.
3.6 The Customer will co-operate with PC Net to try to achieve installation by the relevant dates. If any delay is caused by the Customer and PC Net incurs unavoidable costs the Customer shall pay PC Net a sum or sums equivalent to those costs.
3.7 Subject to the Customer ensuring any relevant information is made known to PC Net, the Customer is responsible for ensuring the Computer Software can be used on the Equipment set out in the Accepted Quote.
3.8 It is the Customer's responsibility to ensure that the relevant software backup securities are taken prior to PC Net undertaking the Service provision and to ensure that all of the equipment and software programs are fully functional after PC Net have provided the Service, prior to the PC Net representative's completion of the relevant task.
4.1 The Customer warrants that all sample Files that are provided to PC Net to enable PC Net to tailor its Accepted Quote for the provision of the Service and/or the Computer Software are a true representation (meaning that all characteristics will be the same) of the Files that will be managed or processed by the Customer.
4.2 If the warranty in 4.1 is breached by the Customer, PC Net shall be entitled to vary the Price by a reasonable amount and will as soon as practically possible notify the Customer as to what such variation shall be.
5. PRIVACY AND DATA PROTECTION
5.1 PC Net has strict security procedures covering the storage and disclosure of any of the Customer's confidential information in order to prevent unauthorised access to comply with the DPA.
5.2 PC Net will in relation to personal data (as defined in the DPA) supplied to it by the Customer not act as data processor on behalf of the Customer and in dealing with it will act only in accordance with the instructions of the Customer as reflected in these Conditions or as given by the Customer to PC Net from time to time.
6. INTELLECTUAL PROPERTY
6.1 The copyright or any other intellectual property rights in:
6.1.1 any Files shall belong to the Customer; and
6.1.2 any third party documents, materials, data or other information provided by PC Net in relation to the Computer Software and/or Equipment shall, unless otherwise agreed in writing between PC Net and the third party, belong to the third party and PC Net shall, if necessary, use reasonable endeavours to procure for the Customer the right to use those items for the purposes of receiving the Computer Software and/or Equipment.
7.1 PC Net shall provide such initial training for the Customer and its staff in respect of the use of any system supplied as PC Net deems necessary. The Customer shall comply with such training and any failure to do so will entitle PC Net to charge the Customer with reasonable additional costs which such failure gives rise to.
8. SUPPORT AND MAINTENANCE
8.1 PC Net operate a support desk service from Monday to Friday (inclusive) during normal business hours being 9am - 5.30pm excluding weekends and any public and/or bank holidays.
8.2 PC Net reserves the right to charge for professional services where an aim agreed between the parties has not been achieved due in the reasonable opinion of PC Net to a Customer obligation not being fulfilled.
8.3 PC Net will provide telephone support or dial up support if the appropriate system is in place to enable such support. If on-site support is required then a charge at the rate as noted within the Accepted Quote or otherwise agreed in writing with the Customer will be applicable.
8.4 Unless otherwise agreed in writing, the Services shall be provided for the Term.
9. RISK AND RETENTION OF TITLE
9.1 Risk of damage to or loss of the Goods shall pass to the Customer at:
9.1.1 in the case of Goods to be delivered at PC Net's premises, the time when PC Net notifies the Customer that the Goods are available for collection; or
9.1.2 in the case of Goods to be delivered otherwise than at PC Net's premises, the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when PC Net has tendered delivery of the Goods.
9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, legal and beneficial title of the Goods shall not pass to the Customer until PC Net has received in cash or cleared funds payment in full of the price of the Goods.
9.3 Until payment has been made to PC Net in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for PC Net and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by PC Net and shall insure the Goods against all reasonable risks.
9.4 In the event that the Customer sells or transfers the Goods to a third party before legal and beneficial title has passed to them under these Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to PC Net) shall be held by the Customer on behalf of PC Net. The Customer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on PC Net's behalf are identified as such.
9.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of PC Net, but if the Customer does so all money owing by the Customer to PC Net shall (without prejudice to any other right or remedy of PC Net) forthwith become immediately due and payable.
9.6 PC Net reserves the right to repossess any Goods in which PC Net retains title without notice. The Customer irrevocably authorises PC Net to enter the Customer's premises during normal business hours for the purpose of repossessing the Goods in which PC Net retains title or inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 9.3.
9.7 The Customer's right to possession of the Goods in which PC Net maintains legal and beneficial title shall terminate if any of PC Net's right to terminate set out in clause 11 arise.
10. LIMITATION OF LIABILITY
10.1 PC Net's entire financial liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Customer under the Contract shall, subject to Condition 10.2, be limited to the lesser of the total payment received by PC Net from the Customer in the twelve months preceding the incident or the actual loss suffered by the Customer save that nothing in these Conditions excludes or limits the liability of PC Net for death or personal injury caused by PC Net's negligence or for fraudulent misrepresentation.
10.2 If the Customer's loss is recoverable under any relevant insurance policy held by PC Net and PC Net considers it commercially reasonable to do so then PC Net's liability shall be limited by such sum as is so recoverable.
10.3 Subject to Condition 10.1 neither party shall be liable to the other in respect of any loss of profit, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the other party as a result of an action brought by a third party) even if such loss was reasonably foreseeable and the party incurring the loss had notified the other party of the possibility that such loss would be incurred.
10.4 Although PC Net will take all reasonable precautions in accordance with good industry practice against computer viruses, it does not warrant that any documents or files transferred to the Customer will be virus free or will not cause interruption to the Customer's own systems.
10.5 Where Computer Software is arranged by PC Net to be licensed directly to the Customer, the Customer acknowledges that it has responsibility to comply with the terms of such license and will indemnify PC Net against any losses, expenses damages or claims which PC Net may suffer as a result of a breach of such license by the Customer and the Customer further acknowledges that PC Net does not act as an agent of the licensor in arranging such license.
10.6 Any Equipment supplied by PC Net to the Customer under the Contract shall not be manufactured by PC Net and PC Net will therefore endeavour to transfer to the Customer the benefit of any warranty or guarantee given to PC Net in respect of such Equipment but will not otherwise be liable for any fault in the Equipment.
11.1 Without prejudice to any other rights to which it may be entitled, either party may give notice in writing to the other terminating the Contract with immediate effect if:
11.1.1 the other party commits any breach of any of the terms of the Contract (other than in respect of the Service Levels) and (if such a breach is remediable) fails to remedy that breach within a reasonable period (as set out in writing by the non-breaching party of receiving that party's request in writing so to do.
11.1.2 the other party (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the other party or any steps are taken (including, without limitation, the making of an application or the giving of any notice) by the other party or any other person for the appointment of an administrator in respect of the other party, or any proceedings are commenced relating to the insolvency or possible insolvency of the other party or if the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt;
11.1.3 the other party suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the Contract and these Conditions or any other contract between the parties to the Contract and these Conditions, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the other party ceases to trade;
11.2 PC Net may terminate the Contract with immediate effect by notice in writing if it has reason to believe the Customer is suffering serious adverse financial circumstances.
12. CONSEQUENCES OF TERMINATION
12.1 Any termination of the Contract howsoever caused:
12.1.1 shall not affect any rights or liabilities which have accrued prior to the date of termination;
12.1.2 shall not affect the coming into force or the continuance in force of any provision of the Contract and these Conditions which is expressly or by implication intended to come into or continue in force on or after such termination.
12.2 All payments due under the Contract shall become due immediately upon termination and PC Net will issue the Customer with a final invoice (which shall also be immediately due and payable) covering all outstanding charges under the Contract.
13.1 Neither party shall assign the Contract or any part of it without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed except that PC Net may assign its rights to receive any payments under the Contract to any party
14. NON SOLICITATION
14.1 Neither party shall, and shall procure that its associates (as that term is defined in Section 435 of the Insolvency Act 1986) shall not, for the duration of the Contract and for a period of one year after its termination (unless agreed in writing by the other party):
14.1.1 solicit or endeavour to entice away from the other party any of the other party's staff involved in providing the Services, or
14.1.2 employ or engage or attempt to employ or engage or negotiate or arrange the employment or engagement by any other person firm or company of any of the other party's staff involved in connection with the Contract.
15.1 PC Net and the Customer shall use all reasonable endeavours to resolve any dispute arising in connection with the Contract. In the event that such a dispute cannot be resolved, the matter shall be determined by the English Courts.
16 FORCE MAJEURE
16.1 PC Net reserves the right to vary the terms of the Contract (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of PC Net including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 180 days, then Customer shall be entitled to give not less than 30 days' notice in writing to PC Net to terminate the Contract.
17.1 All notices between PC Net and the Customer about a Contract must be in writing and delivered by hand or sent by pre-paid first class post, facsimile transmission to the registered office address of the recipient or such other address as shall be notified to the other party.
17.2 Notices shall be deemed to have been received:
17.2.1 if delivered by hand, on the day of delivery;
17.2.2 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays within the UK) after posting (exclusive of the day of posting); or
17.2.3 if sent by facsimile transmission on a working day prior to 16:00, at the time of transmission and other wise on the next working day.
18.1 Each right or remedy of each party under the Contract is without prejudice to any other right or remedy of that party whether under the Contract or not.
18.2 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.
18.3 Failure or delay by either party in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
18.4 Any waiver by either party of any breach of, or any default under, any provision of the Contract by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
18.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18.6 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.