The Following words shall have the following meanings:
- “Agreement” means the physical Order Form (and/or a request for services via an equivalent online method approved by the Company), the Conditions and the SLA.
- “Company” means Hardacre IT Ltd t/a WRS Systems (Company Registration Number 04637875) whose registered office is situated at Systems House, Unit 4, St Cross Business Park, Monks Brook, Newport, Isle of Wight, PO30 5BF.
- “Company’s Network” means the network owned and operated by the Company for the purpose of connecting with the Customer through the internet.
- “Conditions” means these terms and conditions.
- “Contract” means the Customers order and the suppliers acceptance of it in accordance with these conditions.
- “Customer” means any person or organisation with whom the Company enters into an Agreement as detailed on the Order Form.
- “Hardware” means the Hardware ordered under the Agreement and Order Form to be purchased by the Customer from the Company (including without limitation any part or parts of it).
- “Internet” means the global data network comprising interconnected networks to which the Company is connected and provides access to its customers.
- “Operating Manuals” means operating manuals and other manufacture documents relating to the Hardware.
- “Order Form” means an order form agreed by and signed by the Customer relating to the Hardware/Software/Services to be provided by the Company to the Customer pursuant to these Conditions.
- “Parties” means the Customer and the Company.
- “Password” means the alphanumeric characters chosen and used exclusively by the Customer or the Company at its own risk for the purpose of securing and maintaining the exclusivity of its access to the Company’s Services.
- “Services” means the service described in the current Company literature together with such value-added Services to be provided by the Company to the Customer but excluding all or any representations made by the Company’s distributor which will not form part of the Agreement.
- “Software” means any operating system installed on Hardware by the Company as per the Agreement.
- “Service Commencement Date” means the date identified as the target delivery date on the Order Form.
- “SLA” means the Service Level Agreement of the Company to be agreed to and signed by the Customer.
- “Chargeable Days” means Engineer Installation Days, Project Management Services and WRS Training on site.
2. Acceptance of Agreement
- The Customer acknowledges that the Conditions prevail over any of the Customers own standard terms and conditions whether set out on the Customer’s own standard order form or otherwise.
- The Company reserves the right to refuse to enter into any Agreement for the Hardware/Software/Services but if accepted by the Company the Hardware/Software/Services shall not be unreasonably withheld without proper justification.
- In the event of any conflict between the Conditions and the Agreement for the Hardware/Software/Services then the Conditions shall prevail.
- No additions to, variation of, exclusion or attempted exclusion of any terms of the Agreement shall be binding on the Company unless in writing and signed by a duly authorised representative of the Company.
3. Basis of Sales Orders
- Any quotation from the Company is valid for a period of 30 days only and the Company may withdraw a quotation at any time by notice to the Customer.
- Any Order Form/Agreement/SLA or acceptance of a quotation for Hardware/Software/Services by the Customer shall be deemed to be an acceptance by the Customer subject to these conditions. The Customer shall ensure that the Order Form is complete and accurate.
- An Agreement becomes binding on receipt by the Company of the Customer’s signed quotation confirming acceptance of the Agreement and/or a deposit payment to secure order.
4. Hardware, Software and Service
- The Company shall provide the Hardware/Software/Services to the Customers as set out in Appendix B hereto and having regard to the provisions of the SLA if applicable.
- In relation to the performance dates, the number of Chargeable days, estimated to be required to complete the Services as detailed in the Order Form are based upon the following assumptions (known as the “Assumptions”):
- The Customer will not suspend or delay the project in any manner without prior authorisation by the Company which shall not be unreasonably withheld.
- The Services are performed during normal working hours those being Monday to Friday 9:00am to 5:00pm except as otherwise agreed in writing between the Parties.
- Without prejudice to Clause 21 (Variation), changes can only be affected in accordance with the following change control mechanism:
- Either the Company may recommend, or the Customer may request, at any time in writing changes to any of the Assumptions or other provisions of the Agreement.
- The Company will notify the Customer in writing of either the Company making a change recommendation (known as “a Change Recommendation”) or receiving a written request for changes from the Customer (known as “a Change Request”) of the time needed to investigate the implication(s) of the proposal change(s) together with the costs (if any) to be charged by the Company to the Customer for undertaking such an investigation.
- Assuming the investigation proceeds (since it is for the Customer to give the Company a written instruction to investigate the implication(s) of the proposed change(s) by first having agreed to pay any costs to be charged by the Company to the Customer for undertaking it) the Company will give a written response (known as “a Change Response”) showing the effect(s) of the proposal change(s) including:
- A revised estimate of the number of Chargeable Days estimated to complete the Services.
- A revised project timeline; and
- Any additional expenses that will be incurred.
- Any effect(s) on other contractual provisions of the Agreement should the proposed change(s) be implemented and in so doing the Company shall use all reasonable endeavours to ensure that the Change Response is given within such a period as may be reasonably agreed between the Parties of receipt by the Company of a written instruction to investigate the implication(s) of the proposed changes.
- Should the Customer wish to proceed with the proposed change(s) it will instruct the Company in writing of its wish as soon as reasonably possible.
- Until any change is agreed in writing and implemented the Parties shall continue to perform their respective obligations under the Agreement as if the Change Recommendation or Change Request had not been proposed.
- The Company warrants, represents, and undertakes that all key personnel and subcontractors provided by the Company to perform the Services pursuant to the Agreement shall have the appropriate technical and application skills to enable them to adequately perform their duties. All the Services shall be performed in a competent and workmanlike manner. The Company will use all reasonable efforts to ensure continuity in staffing of its key personnel.
- The Customer does not warrant that the Company’s technology or the Services will be compatible with any hardware, Software or other technology not furnished by the Company.
- Whilst the Company is a reseller of Hardware and Software it shall be sold subject to the Customer’s acceptance of the relevant resellers software license(s) for such third-party software. The Company aims, wherever possible, to pass onto the Customer the benefit of any and all representations and warranties it receives from the respective third-party Software and Hardware suppliers but is under no obligation to do so given that such matters lie outside the Company’s control.
- The pricing set forth in the Order Form shall be fixed upon signature of the Order Form.
- The Company warrants, represents, and undertakes that:
- It has a valid right to resell the Software and Hardware as a licensee of the same from the ultimate owner of the Software and Hardware; and
- the Customer’s use or access to the Software and Hardware shall not infringe the intellectual property rights of any third party.
5. Right to Change Username, Internet Protocol Address and Password
- Subject to Clause 5.2, the Company shall have the right at any time to change the username, Internet protocol address and/or password allocated by the Company to the Customer for the purpose of essential network maintenance, enhancement modernisation or other work deemed necessary for the effective operation of the Company’s Network.
- If the Company seeks to change the username, Internet protocol address and/or password allocated by the Company to the Customer in accordance with Clause 5.1 above, it shall:
- give the Customer fourteen (14) days’ written notice of the proposed change.
- ensure any essential network maintenance, enhancement modernisation or other work deemed necessary for the effective operation of the Company’s Network is as limited as possible and only performed outside of normal working hours (9am – 5pm Mondays to Friday); and
- inform the Customer of any new username, Internet protocol address and/or password that it shall assign to the Customer before the essential network maintenance, enhancement modernisation or other work deemed necessary for the effective operation of the Company’s Network is performed.
- A deposit payment for System Orders under an Agreement is payable 10 days prior to any installation date to secure the order.
- For all Hardware/Software/Service invoices payment is due on delivery of the goods or service.
- Payment for support invoices is strictly 30 days from invoice date.
- All prices are subject to change after the initial 12 month period referred to in clause 10, during the initial 12 month period all prices shall be fixed.
- The Company reserves the right to charge interest on late payments at the rate of 3% above the Bank of England Base Rate in accordance with the provisions of the late Payment of Commercial Debts (Interest) Act 1998 as amended by the late Payment of Commercial Debts Regulations 2002.
- All charges and tariffs are quoted exclusive of Value Added Tax.
- The Customer agrees to maintain, at the Customers expense, comprehensive general liability insurance with a reputable insurance company for the full replacement cost of any equipment leased from the Company throughout the term of the Agreement.
- Equipment shall at all times remain at the Customer’s sole risk such that the Customer shall be responsible for insuring the Equipment against all risks.
- Equipment leased from the Company shall at all times remain the property of the Company.
- Nothing in the Agreement shall limit the Company’s liability to the Customer for death or personal injury resulting from the Company’s negligence, fraud or fraudulent misrepresentation, any indemnities given under these Conditions, or any other act, omission or liability which may not be limited or excluded by applicable law.
- Except for the Company’s liability to the Customer listed in Clause 8.1 (where no limit applies) the liability for both parties arising under or in connection with the Agreement for the provision of the Services whether in contract, tort, negligence, breach of statutory duty or otherwise howsoever arising shall not exceed an amount equal to three hundred per cent (300%) of all sums paid by the Customer pursuant to this Agreement in the twelve (12) month period prior to the month in which the most recent event giving rise to liability occurred, with the exception of any indemnities provided by both parties, which shall have no limit.
- Notwithstanding Clause 8.2 the Company shall be liable to the Customer, up to a maximum of 12 months fees with a demonstrable claim by the Customer, for or in respects of any indirect, consequential or economic loss including (but not limited to) damage, costs or expenses of any description, loss of profit, business, goodwill, turnover or any other loss arising from its performance or non-- performance of its obligations in connection with the Agreement whether arising from breach of contract, tort, breach of duty, negligence or any other cause of action.
- Except for the purposes of Clause 8.1, no action or proceedings against the Company arising out of or in connection with the Agreement shall be commenced by the Customer more than six years after the Services have been rendered and in this respect the Customer acknowledges that this Clause constitutes an express waiver of any and all of its rights under any otherwise applicable statute of limitations.
- The Services may be suspended by the Company five (5) days after a notification of suspension has been issued by email and without prejudice to the Company’s rights of termination under Clause 9 in the event of the Customer:
- failing to make any payment to the Company on the relevant due date for payment.
- exceeding its credit limit without the prior written approval of the Company; or
- being in otherwise breach of the Conditions.
- Valid suspension pursuant to Clause 9.1 above shall not affect the liability of the Customer to pay charges and other amounts to the Company.
- The Company reserves the right to suspend the Services if the Customer has not paid the required deposit before a stipulated event or exceeds four times the committed amount during the month for any of the Services or as otherwise provided in the Agreement.
- The Services may be suspended by the Company five (5) days after a notification of suspension has been issued by email and without prejudice to the Company’s rights of termination under Clause 9 in the event of the Customer:
10. Term and Termination
- Subject to clause 10.2 below, the Agreement shall remain in force for an initial fixed term of 12 months from acceptance of the Customer’s application being the date on which the Order Form/Quotation was signed by the Customer unless otherwise agreed with the Company and as so stated on the Order Form/Quotation.
- Termination of the Agreement can be affected:
- by the Company at any time on written notice if the Customer commits a material breach of any term of this Agreement and fails to remedy that breach within a period of 21 days after being notified in writing to do so.
- by the Customer at any time on written notice if the Company commits a material breach of any term of this Agreement and fails to remedy that breach within a period of 21 days after being notified in writing to do so.
- By either party at any time on written notice upon receiving written notification of the institution of insolvency, receivership, bankruptcy or any other proceedings for the settlement of the other party’s debts or upon the making of an arrangement for the benefit of the other party’s creditors or upon the dissolution of the other party.
- By the Customer at any time, by giving 90 days written notice, if the Company consistently breaches the terms of this Agreement and agreed SLAs that are not rectified within a 5 business day period.
- The Company reserves the right to invalidate any or all of the Customer’s Username and Internet protocol address issued to the Customer following termination of the Agreement and to re-allocate them to another customer.
- The Customer shall return all equipment cables and literature belonging to the Company at the Customers own cost within 5 days of termination of the Agreement and shall ensure that it arrives in good working order otherwise an appropriate fee may be levied by the Company.
11. Rights on Termination
- Termination of the Agreement shall not affect any pre-existing liability or pre-existing rights on termination of either party or affect any right of either party to recover damages or pursue any other remedy in respect of any breach of the Agreement by the other party.
- On termination of the Agreement the right to the use of the Internet Protocol Address allocated by the Company shall revert to the Company. In the event of termination of the Agreement by the Company due to breach of the Conditions by the Customer, the Company shall be entitled to the balance of all payments which would but for such termination have accrued up to the earliest date upon which the Agreement could have been terminated by the Customer in accordance with the Conditions.
- In the event of termination of the Agreement by the Company due to material breach of the Conditions by the Customer, the Company shall be entitled to the balance of all payments which would but for such termination have accrued up to the earliest date upon which the Agreement could have been terminated by the Customer in accordance with the Conditions.
- In the event of termination of the Agreement by the Customer due to material breach of the Conditions by the Company, but without prejudice to its rights under applicable law, the Customer shall be entitled to an immediate refund of any fees paid up to the date of termination where no Hardware/Software/Services have been delivered or performed by the Company.
12. Intellectual Property & Data Protection
- The Company grants to the Customer a limited, non--exclusive license to use the Services as set out in the Order Form throughout the term of the Agreement or until the Agreement is terminated (whichever date is earlier) and subject to the restrictions set forth in the Agreement which said license does not entitle the Customer to any updates, modifications or new releases to the deliverables or software. The Company reserves any and all of the Company’s copyright, trademarks, trade names, patents and all other intellectual property rights created, developed, subsisting or used in connection with any deliverables, software or the Services which are the sole property of the Company.
- The Customer shall not transfer the Customer’s License nor sublicense the deliverables or the Software except where permitted to do so by the terms of the Agreement and in particular the Customer shall not (and shall not allow any third party to):
- Remove any product identification, copyright, trademark, or other notices:
- Sell, pledge, lease, lend, distribute over the internet.
- Load or use portions of the Software (whether or not modified or incorporated into or with other software) on or with any machine or system that is not physically kept at the facilities of the Customer or within third party facilities contracted by the Customer.
- The Customer shall not disassemble, decompile or otherwise reverse engineer the Hardware/Software/Services provided under the Agreement.
- The Company shall comply with all applicable data protection legislation including, without limitation, the General Data Protection Regulation 2018 (GDPR).
- The Company shall comply with the requirements of ISO 27001 relating to information security management. The Company shall provide up to date certification of its compliance with ISO 27001 on request by the Customer.
13. Force Majeure
- The Company shall not have any liability to the Customer for any delay, omission, failure or inadequate performance of the Agreement which is the result of circumstances beyond the reasonable control of the Company. Where the Company is so affected in its performance of the Agreement it will notify the Customer in writing as soon as is reasonably possible.
- Where the performance of the Agreement is affected by force majeure the Company shall use its reasonable endeavours to overcome the problem as soon as practicably possible.
14. Expenses of the Company
- The Customer shall pay to the Company all costs and expenses reasonably and properly incurred by the Company in enforcing any of the Conditions or in exercising any of the Company’s rights or remedies under the Agreement including (but not limited to) all costs incurred in tracing the Customer in the event that legal process cannot be affected at the last known address of the Customer.
- Any allowance of time to pay or any other form of indulgence by the Company shall in no manner affect or prejudice The Company’s right to payment and interest pursuant to the Conditions.
- No failure, neglect or delay in enforcing any of the terms of the Agreement may be construed as a waiver of any of either party’s rights in respect thereof nor such neglect, failure or delay a variation of the express terms of the Agreement.
- In the event that any part of the Agreement is found to be invalid or otherwise unenforceable then such provision shall be regarded and construed as severable from the Agreement so as not to affect the validity and enforceability of the remainder.
- Each party undertakes to the other that it shall keep (and shall procure that its directors and employees shall keep) secret and confidential and shall not use or disclose to any other person any information or material of a technical or business nature relating in any manner to the business, products or services of the other party which the receiving party may receive or obtain in connection with or incidental to the performance of the Agreement but subject to the remaining provisions of this Clause 15.
- Notwithstanding Clause 17.1 the receiving party shall not be prevented from using any general knowledge, experience and skills not treated by the disclosing party as confidential or which do not properly belong to the disclosing party and which the receiving party may have acquired or developed at any time during the term of the Agreement.
- Notwithstanding Clause 17.1, the receiving party shall not be prevented from using the information or material referred to in Clause 15.1 above to the extent such information or material comes into the public domain otherwise than through the default or negligence of the receiving party.
- Notwithstanding Clause 17.1 either party shall have the right to communicate any information concerning the other party to any Government Department, regulatory body or any other form of enforcement authority or as may be required by law.
- Neither party shall assign or transfer any of its rights or obligations under the Agreement without the prior written consent of the other party.
19. Clause Headings
- Clause headings are for ease of reference but do not form part of the Agreement and accordingly shall not affect its interpretation.
20. Entire Agreement
- The Services are provided subject to the Conditions to the exclusion of any other terms and conditions such that and for the avoidance of doubt no terms and conditions contained in any document previously sent by the Customer to the Company prior (or subsequent) the Order Form being signed by the Customer shall be of any effect with respect to the Agreement unless expressly agreed in writing by a director of the Company.
- The Customer acknowledges that in entering into the Agreement the Customer has not relied on and shall not be entitled to rescind the Agreement or to claim damages or any other remedy on the basis of any representation, warranty, undertaking or other form of opinion or statement made by or on behalf of the Company save where expressly contained in the Agreement.
- The Parties hereby agree that the Agreement constitutes the entire agreement between the Parties in respect of the Services.
- The Company may vary the Conditions as a result of changes required by its insurers, for operational or administrative reasons or in order to comply with changes in the law, subject to prior written agreement of the Customer on all changes.
- No modification or change to the Conditions or this Agreement shall be valid unless it is in writing and signed on behalf of both parties.
- The Customer will keep the Company promptly informed of any changes to the Customer’s address and such other information as may affect the payment of charges due.
22. Law and Jurisdiction
- The Agreement is governed by the laws of England and Wales and is subject to the exclusive jurisdiction of the Courts of England and Wales.
23. Third Party Rights
- The parties agree that it is not hereby intended that any rights should be conferred upon or enforceable by any third party as defined in the Contracts(Rights of Third Parties) Act 1999 unless the context otherwise permits.
- The Parties confirm that they will comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and the Modern Slavery Act 2015 in the performance of their obligations under this Agreement.