These Terms of Business apply when we, Spectronics Limited, provide services to you, our client. In each case the details of the Services and Fees will be confirmed in writing in a Form of Agreement and that Form of Agreement, together with these Terms of Business and any attached Schedules, will create the contract between us (referred to in these Terms as “the Agreement”). Any other terms are excluded and any earlier agreement or understanding between us is superseded.
1. Our Obligations to You:
1.1. We will provide you with the Services set out in the Agreement.
1.2. We aim to make your computing experience as trouble-free as reasonably practicable. You agree that computers, software and their associated products are often supplied in an imperfect state and that our role is to reduce the effects of such imperfections rather than to eliminate or correct them.
1.3. Our standard hours of operation are 09:00 to 18:00 UK local time, Monday to Friday excluding UK public and bank holidays. These are the hours during which we will attend for installations, respond to support problems and do remedial work. We will use all reasonable endeavours to respond to calls promptly. The precise timing will depend on a variety of matters including the complexity of installation or problem.
1.4. We may at our discretion offer to perform work outside our standard hours, in which case we may charge you additional fees. This includes performing remedial work that has failed during standard hours.
2. Your Obligations to Us:
2.1. Throughout this Agreement you will:
2.1.1. provide access to the Premises and Equipment at the times that we have arranged with you;
2.1.2. ensure that the Equipment conforms to all relevant Health & Safety requirements and is only used by competent persons and in a proper manner;
2.1.3. promptly notify us if any Equipment is not operating correctly and not modify any Equipment in any way without our prior agreement;
2.1.4. ensure that all data is backed up from any Equipment that you ask us to perform work on, prior to us undertaking this work;
2.1.5. not without our agreement, request or permit any third party service provider to provide services in relation to the Equipment of the type to be provided by us under the Agreement;
2.1.6. ensure that we have remote access to the Equipment to enable us to perform the Services and maintain the power supply and the telephone lines required for any internet connection that we supply;
2.1.7. not change the location, billing details or telephone numbers of these lines or change any passwords or log-ins without first consulting us and giving us relevant details.
2.2. After any work that we do for you, we may request that you confirm to us in writing within 24 hours that the work has been completed and is to your satisfaction. If we do not hear from you, the work will be treated as complete and satisfactory.
2.3. You agree not to use the Equipment or Services in any way, or for any data, that: infringes the Intellectual Property of any third party; violates any law or regulation; is defamatory, libellous, unlawfully threatening or unlawfully harassing; is pornographic or indecent; may damage the property, systems or data of others; involves risks of death, personal injury, property damage or environmental damage; involves life support systems, devices or applications; or breaches a contractual commitment between you and a third party.
2.4. Save to the extent permitted by law you will not try to decompile or reverse engineer the Equipment. You will not try to use our Services for any purpose other than that for which they are offered to you. You will not attempt to connect to our servers except as provided in the Agreement.
3. Equipment Supply and Third Party Services
3.1. Unless otherwise agreed, any Equipment that is sold to you under the Agreement will be supplied to you on the basis that you will have the benefit of the manufacturer or supplier’s warranty and, in the event of any defect, our liability will be limited to assisting you in pursuing the
manufacturer/supplier and providing support to the extent set out in the relevant Services Schedule.
3.2. You agree to satisfy yourself as to the suitability of any Equipment to be acquired by us for you before it is ordered and we will use our best efforts to supply Equipment to meet the specification documented by you.
3.3. We will usually require payment for all Equipment before placing an order to cover the cost to us. Until we receive payment in full, title to the Equipment will not pass to you and we will be entitled to retain or recover possession from you.
3.4. Notwithstanding retention of title by us risk of damage to or loss of the Equipment will pass to you at the time of delivery or collection or if you fail to take delivery of the Equipment at the time when we have responsibility to restore the condition of your Premises after installation.
3.6. Equipment will be deemed to have been accepted by you unless you notify us of a problem within 7 days of the installation date.
3.7. You will comply with the terms of all operating instructions and licences that relate to Equipment supplied to you.
3.8. You agree that we may act as your agent with the Equipment supplier for the purpose of resolving problems with the Equipment and if necessary requesting the supplier to repair it.
3.9. When any Services include the services of a third party or use of Equipment licensed to us by a third party supplier, you will (insofar as they affect you) be bound by the terms and conditions of our agreement or licence with the supplier and a copy of those terms and conditions will be supplied to you on request.
4. Representatives and Complaints
4.1. If you are a business client you will designate an individual, the Business Client Contact, as the primary contact within your company in relation to the Services who is authorised to agree charges, orders for Equipment and Services and other decisions, and make payments, on your behalf. We are entitled to rely on any decision of the Business Client Contact communicated to us.
4.2. We will designate an individual, the Company Contact, as the primary point of contact with you in relation to the Services. Any complaint must be notified promptly in writing to the Company Contact who will investigate the matter on our behalf.
4.3. Our respective representatives will meet from time to time at the request of either of them to review the operation of the Agreement and discuss operational issues, improvements and problems.
4.4. To avoid doubt, the representatives will not have authority to amend any of these Terms of Business.
5.1. Services do not include the investigation, diagnosis or rectification of any fault or other problem resulting from:
5.1.1. the improper use or operation of Equipment;
5.1.2. modification or repair to any Equipment made by anyone other than a person previously approved in writing by us;
5.1.3. your failure to implement recommendations in respect of faults previously advised by us; or
5.1.4. any breach by you of any of your obligations under any Equipment licence or maintenance agreement.
You may request us to provide support services in respect of these matters. If we agree to do so, we will be entitled to make an additional charge in accordance with our then current standard rates.
6. Fees and Payment
6.1. Fees and payment terms are set out in the Fee Schedule. Unless otherwise specified, all invoices are due for payment no later than 7 days from the invoice date.
6.2. In the case of Equipment purchases, we reserve the right to require full payment from you in advance before placing an order with the supplier. In the case of a time and materials price project, we reserve the right to require payment on completion of each segment of Service (including each on site visit or remote support session). In the case of a fixed price project, we reserve the right to require payment of all or part of the fee in advance and, if a project is cancelled by you before it is completed, we will nonetheless be entitled to full payment of the agreed fee.
6.3. Out of pocket expenses will be invoiced as appropriate in accordance with our Fee Schedule.
6.4. You will make all payments due under the Agreement without any deduction or set-off. If you dispute any amount, you must inform us in writing with details within 7 days of receipt of the invoice and we will look into the matter. Failure to notify us within this time will be construed as a waiver of any of your right to dispute the invoice. Unless we agree to adjust an invoice you must pay the full amount on the due date and any dispute will be dealt with under the Dispute Resolution procedure in clause 14.
6.5. If you fail to make any payment by the due date, we reserve the right (without prejudice to our other rights) to charge interest (both before and after any judgment) and costs on any overdue amount at the statutory rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 if applicable and otherwise at the rate of 2% per month from the due date until payment is received in full and/or to suspend the provision of any of the Services.
6.6. To the extent that our Services involve use of Equipment or facilities supplied by third parties, any increase in the prices or charges of those third parties will be passed on to you.
6.7. We will give notice to you of any increase in prices or charges, whether our own or those of third party suppliers.
6.8. All prices and charges are quoted exclusive of VAT which, where applicable, will be added and payable at the relevant rates.
7. Data Protection and Confidentiality
7.1. We undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation insofar as the same relates to the Services and the Agreement. You also undertake to comply with those provisions.
7.3. The terms of the Agreement and all information of a confidential nature that we obtain concerning you or your business will be kept confidential and not disclosed to any third party (except for the purpose of any of the Services). You acknowledge that in certain situations our personnel may be in a position to see or have access to the contents of files on your computer. We confirm that all our personnel are bound by confidentiality obligations in their contracts with us.
7.4. You understand that you should use encryption and personal security programs to increase the security and privacy of your files and it is your responsibility to adopt these measures to protect sensitive and confidential data. Moreover, if you are required under any professional or statutory regulations to keep your data confidential or secure then you will encrypt them so that our employees cannot have access when working on your equipment. You are responsible for keeping the encryption keys safe as without them, encrypted data may be permanently lost.
8.1. We warrant that all Services supplied under the Agreement will be carried out with reasonable skill and care.
8.2. We will take appropriate steps to ensure that our Services are performed by personnel whose qualifications and experience are appropriate for the tasks to which they are allocated.
8.3. You must notify us immediately and in any event within 3 working days of performance by us of any Services which in your opinion are unsatisfactory. Subject to our limit of liability in the Agreement, we will rectify any faulty work for which we are responsible as soon as reasonably practicable at our own expense. If a fault is reported which on investigation is not our responsibility, we may charge our standard hourly rates for the time and expenses incurred in undertaking the investigation and rectification.
8.4. When we arrange the purchase of Equipment for you, it is your responsibility to decide before placing an order that the Equipment is suitable for you. We give no warranties and we will take steps to assign to you the benefit of any manufacturer’s warranty. Any claim should be made by you against the manufacturer. We will provide reasonable assistance to you in making any warranty claim.
8.5. All terms, conditions and warranties implied by law, trade use or otherwise (including but not limited to any warranties as to quality or fitness for purpose) are excluded to the extent permitted by law. By entering into the Agreement with us, you acknowledge that the only warranties are those given expressly in these Terms and that we have no liability or obligation to you except as set out in the Agreement.
9.1. We will take appropriate steps to remedy any defect in the Services for which we are responsible and which is promptly notified by you but our liability is limited as stated below.
9.2. In the event of direct loss of or damage to tangible property at your premises caused by the negligence of our employees, agents or subcontractors in connection with the performance of their duties under the Agreement our liability shall be limited to the repair or replacement of the property up to a limit of £5,000 for any one event or series of connected events.
9.3. We will not have any liability to you for loss of any of your data except as stated in this clause. You are responsible for ensuring that appropriate back-up, anti-virus systems and security procedures are in place. Our responsibility will be limited to providing advice on back-up and anti- virus arrangements and checking any problems notified to us. If you suffer loss of data, then to the extent that (a) the data loss is due to proven negligence on our part and (b) your claim is met by our professional indemnity insurers, we will reimburse your loss out of the insurance moneys that we receive up to an annual aggregate maximum of £100,000.
9.4. Save in respect of claims for death or personal injury arising from our negligence and claims for loss of data met under the previous clause 9.3, we will have no liability for any indirect or consequential loss, damages, costs or expenses of any kind (whether in contract or tort or for breach of statutory duty) including (but not limited to) loss of production, loss of or corruption to data, loss of business, loss of profits, loss of operating time and loss of goodwill.
9.5. Except as provided above, our maximum aggregate liability to you under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs only and will be limited to £20,000.
10.1. We will throughout the Agreement maintain public liability insurance and professional indemnity insurance. Evidence of such insurance will be supplied on request.
10.2. You agree to maintain public liability insurance and, if you are a business client, employer’s liability insurance and insurance covering loss of data and equipment failure.
11. Intellectual Property
11.1. All Intellectual Property in any software and materials developed by us under the Agreement in connection with the Services, including modifications to any software, will remain our property. You will have a non-exclusive and non-transferable licence to use solely for your own internal purposes the materials and software developed by us.
11.2. You will be responsible for ensuring that no action of yours or of any of your personnel or contractors constitutes an infringement of any of our Intellectual Property or those of any third party and you will indemnify us against any claims, costs, losses and liabilities arising from any breach.
11.3. You are responsible for obtaining all licences, permits and approvals required in connection with the Services, including, but not limited to, the consent of any licensor of software, telecommunications owner, utility company or otherwise with respect to the Equipment.
11.4. In the event that any Equipment or Service that we provide to you under the Agreement is subject to a third party licence we shall advise you of the terms of such licence and you undertake to abide by those
terms. Except when specifically agreed by us, you agree that any licensed products that we provide are part of the Services and you will not acquire any Intellectual Property or other property rights in relation to those products.
12. Force Majeure
12.1. We will not have any liability to you if we are prevented from performing any of the Services on account of any circumstances beyond our reasonable control (a “force majeure event”). We will immediately notify you of a force majeure event and take such steps as are reasonably practicable to overcome the same. During a period of force majeure, our obligations shall be suspended to the extent that they cannot be performed.
13.1. Assignment and Subcontracting: You many not transfer any of your rights or obligations under the Agreement to another party without our prior written consent. We are entitled to subcontract any Services, but this will not relieve us of any of our obligations to you.
13.2. Binding nature: By entering into the Agreement you agree that it binds you and each of your employees, agents and persons associated with you, including any of your associated companies and organisations that receive or use our Services or Equipment.
13.3. Waiver: Either you or we can temporarily overlook a breach of a term of the Agreement and still have the right to enforce it at a later date.
13.4. Severability: If a part of the Agreement is deemed to be invalid, unenforceable or illegal, the rest of the Agreement will remain in force and we will endeavour to modify the relevant part to make it valid, enforceable and legal.
13.5. Third parties: No term of the Agreement will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
13.6. Notices: Any notice under the Agreement must be in writing and sent by email or by first class post or delivered by hand to the other party’s address as shown in the Form of Agreement, or to another address of which notice has been given under this subclause.
13.7. Entire Agreement: The Agreement (including the Schedules) is the entire agreement between you and us and replaces any previous agreements, understandings and representations. You acknowledge that no reliance
is placed on any representation made by us but not embodied in the Agreement.
14. Law and Dispute Resolution
14.1. The Agreement is governed by English law.
14.2. We will endeavour to resolve any dispute by good faith direct negotiation.
14.3. Any dispute that is not settled by direct negotiation will be finally decided by the English courts.
15.1. The following terms used in the Agreement (including the Schedules) have the meanings set against them below:
15.1.1. Business Client Contact: the individual (or individuals) who has your authority for the purposes of clause 4.
15.1.2. Company Contact: the individual nominated by us as our principal contact with you.
15.1.3. Equipment: any equipment including hardware or software that we supply or which is used by you in connection with a Service.
15.1.4. Fee Schedule: a part of the Agreement that sets out the fees payable by you for the Services.
15.1.5. Form of Agreement: the form of agreement or letter signed by a director of Spectronics Limited to which these Terms of Business are attached.
15.1.6. Intellectual Property includes designs, drawings, trade marks, service marks, domain names, logos and other branding elements, patents, copyrights, inventions, know- how, processes and software and all associated rights.
15.1.7. Premises: your place of business, home or any other location where it is agreed that our representatives, agents, subcontractors or employees will attend in providing the Service.
15.1.8. Service: any service we provide to you under the Agreement in accordance with a Services Schedule.
15.1.9. Services Schedule: a part of the Agreement that sets out the details of a Service that we will provide to you.
15.2. Any reference in the Agreement to any provision of a statute will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
15.3. The headings in these Terms of Business are for convenience only and will not affect their interpretation.