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TERMS AND CONDITIONS |
DEFINITIONS |
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The 'Company' means ITCETRA Ltd. (registered number 6431298) whose registered office is at 213 St. John Street, London, England, EC1V 4LY. |
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The 'Customer' means the entity defined in the schedule or the entity to whom service has been provided |
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The 'Contract' means these terms and conditions and any schedule agreed by the customer and any order signed by the customer. |
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The 'Equipment' means those items specified in the attached schedule that are subject to the Service |
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‘Consumable’ means any item or part of the Equipment which is expressly described as consumable by the manufacturer or which is intended to have an effective life span of shorter duration than the Equipment of which it forms a part. |
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'Premises' means the place or places where the Customer conducts its business from time to time. |
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'Service' means the provision of maintenance, repair and ancillary services to the Equipment and all other work to be carried out by the Company on the Premises in accordance with the agreed schedule |
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'Service Charge' means the charge specified in the attached schedule as may be amended from time to time in accordance with the terms of the Contract. |
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‘Remote Control’ means the use of software to take control of a computer terminal at The Customer’s Premises without the need for an employee of The Company to attend The Customer’s premises |
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| 10 |
'Reasonable Endeavours' means that the Company will use all reasonable efforts to source appropriate replacement parts and maintain and repair Equipment. No warranty or guarantee will be provided in respect of services provided using only Reasonable Endeavours. |
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The Service Levels in the schedule are stated in Response times (R), This is the expected maximum time for the appropriate action by the Company staff measured from the time of the call requesting service |
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SERVICE |
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With effect from the date of this Contract, the Customer appoints the Company, and the Company accepts such appointment, to provide the Services to the Customer in respect of the Equipment. |
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In the event of a fault, error or malfunction (each a “Fault”) in the operation of any item of Equipment, the Customer will at the earliest opportunity notify the Company, of the Fault, specifying the Equipment concerned, the nature of the Fault and any other information the Company may reasonably request. |
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The Company shall take remote control of The Customer’s equipment in order to rectify the fault and if necessary. The Company shall attend the Premises within the times specified in the schedule in order to perform the Services. |
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STANDARD OF SERVICE |
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The Company shall act at all times with good faith towards to the Customer and use materials and supply Consumables from reputable manufacturers. |
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Save where the Company is permitted to provide the Services using Reasonable Endeavours only, the Company shall act with all due skill, care and diligence as is to be expected from a professional provider of Services. |
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The Company shall at all times use its best endeavours to source appropriate products and/or equipment for the Customer’s use. Where the Customer has approved the purchase of the aforementioned product and/or equipment, the Customer will be liable for its full purchase and delivery price. |
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On delivery of the required product and/or equipment, the Customer will not be entitled obtain a refund, return or exchange if the product/or equipment has been opened. If the product/equipment has not been opened, the Company will use its best endeavours to return, exchange or obtain a refund. In this regard, the Customer acknowledges that an administration fee may apply in respect of the same. |
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Payment for such products/equipment must be received by the Company within 14 (fourteen) days of the date of the invoice. |
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CUSTOMER'S RESPONSIBILITIES |
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The Customer will make available to the Company such information as may be requested from time to time and which is in the Customer’s sole discretion it determines to be necessary or desirable in order for the Company to perform the Services. |
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The Customer is reminded of the need to take backup copies of all data. |
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At the end of each attendance at the Premises, the Company will log all details of the work performed during that attendance. |
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The Company may request this work record from time to time, should there be any query as to the work completed. |
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The Customer acknowledges that all copyright and other rights in any program sold by the Company remain the property of the Licensors or the Suppliers of the program and that neither the Customer nor any Third Party to whom the Customer supplies or transfers the program to has any rights herein except as expressly licensed by the Licensor or Supplier of the program. |
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The Customer may not, except as expressly licensed by the Licensor or Supplier of the program:
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| (a) |
reproduce or translate any program or part of a program; |
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sell, rent, lease or otherwise part with possession or control of a program to another party. |
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The Customer agrees to ensure that all programs supplied by the Company are used by either the Customer or the Third Party to whom the Customer transfers the program only as expressly licensed by the Licensor or Supplier of the program. |
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Upon any supply or transfer of the program by the Customer to any Third Party, the Customer agrees to transfer to the Third Party a copy of these conditions and therefore bind the Third Party to the same. |
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LIMITATION OF LIABILITY |
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Nothing in this Contract excludes or restricts either party’s liability for death or personal injury resulting from the negligence or wilful default of that party during the provision of the Services |
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The Customer will indemnify and keep indemnified the Company against injury (including death) to any persons employed by the Company, or loss of or damage to any property belonging to the Company and which occurs on the Premises under the immediate control of the Customer and arises out of the act, default or negligence of the Customer or any contractor employed by the Customer (other than a subcontractor) and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect of or in relation thereto. |
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The Company will indemnify and keep the Customer indemnified against all and any losses, claims, costs, expenses and liabilities of whatever nature arising from any breach of this Contract, the fraud, wilful default or negligence of the Company, its agents, officers, contractors and representatives. |
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Nothing in this Contract excludes or restricts the Company’s liability:- |
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| (a) |
arising from any defect in goods supplied by the Company if and to the extent the Company is liable under Part I of the Consumer Protection Act 1987; |
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| (b) |
arising from a breach of the Company’s statutory duty under section 41(I) of the Consumer Protection Act 1987 not to contravene any obligation contained in safety regulations made under section II of the Consumer Protection Act 1987. |
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NON-SOLICITATION OF EMPLOYEES AND CONFIDENTIALITY |
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During the term of this Contract schedule and for a period of six (6) months afterwards, each party undertakes with the other that without the prior written consent of the other it will not on its own account or for any other person, firm or company solicit, interfere with or endeavour to entice away any employee of the other or any employee of any company associated with the other with whom the first such party has dealt in relation to this Contract or any ancillary arrangement to this Contract. |
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| 2 |
In providing the Services to the Customer the Company may from time to time have access to the Customer’s Confidential Information. For the purposes of this Contract Confidential Information means all information which is either marked as confidential or which (without limitation) would ordinarily be regarded as confidential or which relates to the Company’s employees, its Customers, the Company’s business, prospective business, current or projected plans and affairs of the Company. The Company will not, and will procure that its agents; employees and representatives do not (1) use any Confidential Information for benefit or gain and (2) disclose or transmit any Confidential Information to any third party. |
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The provisions of this Clause will not apply to any Confidential Information which:- |
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the Company is required to disclose by any court, tribunal or governmental authority with competent jurisdiction; |
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comes within the public domain other than through any wrongful act or omission of the Company, its servants or agents; |
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was not received by the Company from a third party in breach of any duty of confidentiality. |
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SUPPORTED PRODUCTS |
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The Customer is advised that the list of products supported by the Company is subject to change from time to time. Any proposed changes shall be advised quarterly to the Customer. No changes shall be permitted by the Company which would result in a diminution in the Services. |
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EXCLUSIONS |
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The Company shall not provide support for programming developments and macros written or created by the Customer using 'off-the-shelf’ products such as database and spreadsheet packages. However, support shall be provided for the installation and configuration of such products and problems arising from the use of the unmodified product. The Company will not provide customer training (as distinct from ad-hoc support and-one-off questions) over the telephone. On acceptance of a purchase order from the Customer, the Company shall provide such training based on the Company’s then current standard training rates. |
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WARRANTY |
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The Company warrants that the Service shall be performed by appropriately experienced and trained personnel. |
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A request for the Company’s technical support will ordinarily be regarded as satisfactorily concluded when the Customer has been given an appropriate solution or a suggestion as to how the problem may be avoided or a suggestion as to how the Customers objective may be achieved in some other way or a statement indicating that none of these are possible. |
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REMOTE SUPPORT |
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Remote support is provided to the extent (if any) specified in the schedule. |
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Remote Support is ordinarily available from 9 AM to 5PM but may be provided outside of these times upon prior arrangement with the Company. |
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Remote Support is billed in time increments and will be rounded up to the next nearest time increment as defined in the schedule. |
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Notwithstanding the Company’s normal working day, all overtime associated with any remote support and requested by the Customer, shall be charged at time and one half of the then current applicable daily rate. |
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In the event that the work cannot be completed within the service period, e.g. the number of remote support hours purchased as defined in the service level (if any), the Company may, at the written request of the Customer, provide additional services but any additional services shall be charged at the Company’s time and materials rates, as advised at that time of request |
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In the event that the work cannot be completed remotely, the Company may send an engineer the Customer’s Premises if such a support request is made. |
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ON-SITE SUPPORT |
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On-site support is provided to the extent (if any) specified in the schedule. |
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The duration of 1 (one) on-site support attendance shall be the shorter of (1) such time as the problem is resolved or (2) a period not exceeding the normal working day, being 7.5 (seven and one half) hours excluding meal breaks Monday to Friday excluding national bank holidays |
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Any unused on site days/hours purchased, cannot be carried forward to the following month and must be paid for in full, by the Customer, in accordance with the monthly contractual fee. |
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Notwithstanding the Company’s normal working day, all overtime associated with any on-site attendance and requested by the Customer, shall be charged at time and one half of the then current applicable hourly rate. |
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In the event that the work cannot be completed within the service period, e.g. the number of on-site days/hours purchased as defined in the service level (if any), the Company may, at the written request of the Customer, provide additional services but any additional services shall be charged at the Company’s time and materials rates, as advised at that time of request. |
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The Customer shall fully indemnify the Company against all claims and losses to the extent they are due to any breaches by the Customer of intellectual property rights. |
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ADDITIONAL EXPENSES |
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Without the prior written agreement of the Customer reasonable and appropriate expenses incurred by the Company in providing the Services shall be reimbursed to the Company, up to a maximum of £100. Any sums over and above this amount or incurred without the prior written agreement of the Customer may be reimbursed in the Customer’s sole discretion. The Company will use all reasonable efforts to ensure the Customer is frequently advised of any costs incurred on its behalf and for which the Company may seek reimbursement. |
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NETWORK SUPPORT |
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Network support is excluded from cover unless specified in the schedule. |
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Where Services relate to network support, the Company shall have no obligations in relation to matters arising from:- |
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| (a) |
installation services provided by third parties; |
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damage caused by use of hardware and/or software which is not supported by the manufacturer of the Customer’s network equipment or the Company. |
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WEB HOSTING |
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Web Hosting Accounts may be cancelled by the Customer informing the Company, in writing, no later than 28 days prior to the next hosting renewal date of cancellation, if this does not occur, automatic renewal fees may be incurred by the Customer. |
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APPLICATION DEVELOPMENT |
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Application Development includes website development, software application development and bespoke web applications. This list is not exhaustive. |
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Developments referred above in 15.1 will be developed according to an agreed ‘scope’ which the Company will produce for approval by the Customer. |
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On approval of the ‘scope’, the Company will commence development only after a deposit of 40% of the cost of the development is received by the Company from the Customer. |
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Any modifications to the agreed scope by the Customer will charged at a fee agreed by the Company and the Customer. |
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The Company will provide remote support for the developments referred to in 15.1 if requested by the Customer at an agreed fee stated in the Schedule. |
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During the aforementioned development, if the Company is required to use a 3rd party application or a 3rd party payment gateway, the Company will not be responsible for the proper functioning of the application and/or gateway and will not provide any remote support in respect of the same. |
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The Company will use its best endeavours to complete the application development within the set time frame. In the event of any delays, the Company will inform the Customer of the same and will not be liable to the Customer. |
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The Company will back up the application at the request of the Customer at an agreed fee stated in the Schedule. |
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Failure by the Customer to pay the Company for the application development in accordance with the Schedule will, firstly, result in a formal request for payment. Secondly, all developmental work will be ceased immediately and thirdly, the development will be removed from the World Wide Web and from any other public domains. |
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The contract for application development can be terminated by either party giving 30 days notice in writing. In the event that the application development will take less than 30 days, each party is required to give ¼ of the total length of time estimated for the completion of the application development. |
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On termination of the contract, the Customer will be liable to pay the Company for all work completed up until the date of termination. |
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Any applications developed by the Company must not be sold on to a 3rd party by the Customer. |
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SEARCH ENGINE OPTIMISATION |
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The Customer must pay the Company 60% of the overall fee for search engine optimisation before the Company commences such work. This fee is non refundable. |
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CHARGES AND TERMS OF PAYMENT |
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All charges are as stated in the schedule, payable in advance and within 14 (fourteen) days of the date of invoice. |
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Invoices will be raised at intervals as specified in the schedule or annually if not otherwise stated. |
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Failure to pay within the invoice terms will be deemed outstanding. |
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The Customer is responsible for notifying the Company of all additions to and deletions from the schedule. All equipment that is added to the schedule will be deemed part of the Equipment from the date notified to the Company. The Company reserves the right to increase the service charge for any and all equipment added to the schedule if it believes that this addition will add to the support requirement of the customer. |
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No Service will be provided whilst a payment is outstanding. The withdrawal of Service will be notified in writing to the Customer and will not relieve the Customer from payment of any charges due. The Company reserves the right to charge interest on overdue charges at the rate of 7 percent above Bank of England rate from time to time on force. |
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The Company may by one calendar month's notice given to the Customer in writing increase the amount of the Service Charge from time to time. It is understood that any such increase may apply in respect of any or all of the Services or items of the Equipment as specified in the schedule. |
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If the Company is called upon to provide Service outside of the times agreed in the schedule, any such Service will incur additional charges at the Company's current rates which the Customer will be deemed to have accepted. |
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If repairs or replacements are required or additional costs are incurred by the Company as a result of any operation, default, accident, misuse or negligence of the Customer or any third party, the Company shall have the right to make a reasonable additional charge in respect thereof. |
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VAT |
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All charges for Services or cost of any parts will be subject to Value Added Tax at the rate applicable from time to time. |
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DURATION AND TERMINATION |
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The Contract is effective from the date stated in the schedule once signed and dated by an authorised representative from both the Company and the Customer and shall continue in force until terminated by either party in accordance with the provisions of this clause. |
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In the event that either the Company or the Customer becomes insolvent or bankrupt or has a Receiving Order or Administration Order made against it or if the Company or the Customer compounds with its creditors or has a Winding-up Petition issued against it then this Contract may be determined forthwith by Notice in writing by either party to the other such notice to be without prejudice to any accrued rights and obligations at the date thereof. |
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This Contract may be terminated by either party giving the other ninety (90) days written notice to the other. |
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The Contract may be terminated forthwith by either party if either party is in breach of the Contract and fails to remedy such breach within 14 days of receipt of notice in writing or such longer period as may be mutually agreed. |
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Termination of the Contract will not prejudice any rights of either party which have arisen on or before the date of termination. |
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FORCE MAJEURE |
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Neither party will be liable for failure to perform or delay in performing its obligations under the Contract or otherwise deemed to be in breach of Contract, if such failure results from circumstances beyond its reasonable control, including but not limited to act of God, flood, lightning, fire, industrial action, lockouts, the act or omission of government or other competent authority, act of terrorism, war, military operations or riot, act or omissions of third parties for whom the party concerned is not responsible from performing any of its obligations under the Contract, such party shall not be liable for failure to perform such obligations, provided that: |
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the party relying on this sub-clause immediately gives written notice to the other of the reason for the fault or delay; |
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the party relying on this sub-clause uses all reasonable efforts to overcome the circumstances or delay and notifies the other party in writing of the nature of these efforts; |
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Upon cessation of the event of Force Majeure, the party relying on this sub-clause notifies the other of the cessation. |
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The affected party will take all reasonable steps to avoid or remove such cause of non-performance as promptly as possible. |
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LAW |
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The Contract will be subject to and construed and interpreted in accordance with English Law and shall be subject to the jurisdiction of the Courts of England. |
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NOTICES |
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All notices, agreements and consents under the Contract will be made in writing and will be sent to the address of the recipient set out in the schedule or to such other address as either party notifies to the other. Letters may be delivered by hand or first class post which will be deemed to be delivered 48 hours after posting. |
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| The terms and conditions of this Contract constitute the entire agreement between the parties with respect to the subject matter herein and supersede all other understandings, whether oral or written and may only be modified in writing signed by both parties |
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| The waiver of any breach or default under this Contract by either party shall not constitute the waiver of any subsequent breach of default. |
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| The terms of the Customer's purchase order or other business forms shall have no legal effect. |
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