Terms and Conditions

1. Definitions

The following definitions and rules of interpretation apply in any agreement between You and Us:

Agreement: A contract for a specific product, service or project with its own contract. The terms of that contract will fall within this set of Terms and Conditions. If there is a conflict, unless there is an order of priority for resolution, these Terms will remain the priority.

Additional Work: Any additional Products, Software, and/or Services provided by or on behalf of Supplier to You pursuant to the Agreement’s relevant clause.

After Hours: Means from 18:00 – 08:00 hours Monday to Friday and all day Saturday and Sunday including Bank Holidays in England.

Applicable Laws: All laws, statutes, regulations of any relevant jurisdiction where the Products, Software, and Services are provided from, as amended and in force from time to time.

Approved Products List: A list of Products, including hardware and software, for which We provide Support Services. This list is updated frequently. This list only incudes as approved within-lifetime and with-warranty items.

Authorised Users: Employees, agents, and independent contractors of You authorized to receive the Software or Services as listed in an Agreement, a SOW, or otherwise agreed in writing.

Bank Holidays: Any day which is a Bank holiday throughout England.

Business Day: A day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business.

Business Hours: The period from 8:00 am to 18:00 am on any Business Day.

Charges: The sums payable for the Products, Software, and Services as set out in a Cover Sheet, Agreement or otherwise agreed between the parties in writing.

Client/You/Your: A person who seeks or obtains a quote for, or orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears an order is placed, and in any case each of their heirs, successors, and assigns.

Conditions: These terms and conditions.

Contract Year: 12 months from the Commencement Date and every subsequent 12-month period.

Cover Sheet: The front sheet at the start of an Agreement.

Customer: Defined as in any Agreements between Us and You and includes Your related parties.

Customer Data: Any data including personal data of You and Your users provided to or accessed by Us Personnel in providing the Products, Software, and/or Services under an Agreement.

Customer Equipment: Any equipment, including tools, systems, cabling, or facilities, provided by You, used directly or indirectly in the supply of the Products, Software, and Services.

Customer Materials: Documents, information, items, and materials in any form provided by You to Supplier or Supplier’s Personnel in connection with an Agreement.

Customer Underlying IPR: Intellectual Property Rights owned or controlled by You, developed independently of an Agreement.

Deliverable: Any specific output of the Services to be provided by Us Personnel to You as specified in an Agreement.

Developed Materials: Materials and Intellectual Property Rights specifically developed by Supplier as part of the Services specifically for You but excluding any Supplier Underlying IPR, Customer Underlying IPR, and Third Party IPR.

Force Majeure Event: Any circumstance not within a Party’s reasonable control.

Goods: Any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services including computer Hardware and Software and any goods or services provided in connection with any of those things.

Hardware: Physical components and equipment utilized in computing or technological systems, including but not limited to computer devices, machinery, peripherals, and tangible parts.

Intellectual Property Rights: Patents, utility models, rights to inventions, copyright, and neighbouring and related rights, among others.

Period: A specified period agreed between Us and You during which some Services will be provided.

Plan: Any arrangement between Us and You for Services and/or the provision of Goods provided by Us under an arrangement in connection with work agreed to be done or progressed for or on behalf of You or any other person at Your request.

Plan Schedule: The key terms applicable to Plans, set by Us from time to time without notice to You.

Products: Hardware and related products supplied by Supplier as set out in any Cover Sheet, pursuant to any Agreement, or otherwise pursuant to this set of Terms and Conditions.

Quote: An invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.

Rate Card: Table outlining the applicable time or materials for any Additional Work, provided to You from time to time.

Rates: The hourly rates and other charges for Services set out in various documents including any monies payable to Us for work done.

Rate Schedule: The schedule of rates, charges, and conditions for the services of Ours as set by Us from time to time.

Reasonable Assistance Limits: As defined in the Agreements.

Related Parties: an entity’s parent, subsidiaries, assignees, transferees, current and former representatives, principals, agents, officers, directors, shareholders, any associate of any of such person (including persons having control of a Party) within s.435 of the Insolvency Act 1986, employees of a Party or of any other body corporate which is its holding company or subsidiary and any other body corporate which is a subsidiary of that holding company and any business in which any such person has any interest.

Return/Cancellation Fee: A fee charged as set by Us from time to time.

Service request: A request for service such as adds, moves, changes, and technical assistance.

Services: The services provided to You by Our Personnel under an Agreement.

Software: Refers to computer programs, applications, and related instructions used to perform specific functions or tasks. This includes installation, updates, associated software, and services related to these elements.

SoW: A statement of work for Additional Work or such other written agreement agreed between the Parties from time to time.

SoW Initial Term: As specified in the relevant SoW.

SoW Renewal Term: As specified in the relevant SoW.

Supplier Personnel: Officers, contractors, employees, consultants, agents, representatives, and advisers of Supplier providing the Products, Software, and Services under an Agreement.

Supplier Underlying IPR: Intellectual Property Rights owned or controlled by Supplier, developed independently of an Agreement.

Support Services: Supplier’s standard support services provided to its customers.

Survival of Obligations: Customer’s payment obligations under this Section surviving and continuing until full satisfaction of the remaining contract fees.

Term: The period during which an Agreement remains in full force and effect.

Third Party Agreements: As defined in the agreements.

Third Party IPR: Intellectual Property Rights in any Products, Software, and/or Services that are not-Supplier branded or owned.

Us/Our/We: Any entity in the group of companies with Kookaburra Technologies Limited as its ultimate parent, and its heirs, successors, and assigns.

VAT: Value-added tax chargeable under the Value Added Tax Act 1994 as well as any other locally applicable sales tax or levies payable.

Viruses: Any thing or device adversely affecting computers, networks, telecommunications services, equipment, or user experience.

Vulnerability: A weakness in the computational logic found in software and hardware components, when exploited, negatively impacting confidentiality, integrity, or availability.

2. Interpretation
   • In these Conditions, the Rate Schedule, and every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:
   • Words denoting the singular number only shall include the plural number and vice versa;
   • Reference to any gender shall include every other gender;
   • Reference to any Act of Parliament, Statute, or Regulation shall include any amendment currently in force at the relevant time and any Act of Parliament, Statute, or Regulation enacted or passed in substitution therefore;
   • Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;
   • All references to Pounds (£) are to English Pounds Sterling.
   • A reference to time is to Greenwich Mean Time;
   • A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state, or government and vice versa;
   • A reference to a recital, clause, schedule, annexure, or exhibit is to a recital, clause, schedule, annexure, or exhibit of or to these Conditions;
   • A recital, schedule, annexure, or description of the parties forms part of these Conditions;
   • A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented, or replaced from time to time;
   • Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
   • A reference to “includes” means includes without limitation;
   • A reference to “will” imports a condition, not a warranty;
   • A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming insolvent under administration, being subject to administration, and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances, and events which constitute any of those conditions or matters.

3. General Provisions
   • Clause and paragraph headings shall not affect the interpretation of an Agreement.
   • Any Agreement shall be binding on, and ensure to the benefit of, the Parties to an Agreement and their respective personal representatives, successors, and permitted assigns, and references to any Party shall include that Party’s personal representatives, successors, and permitted assigns.
   • A reference to a statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
   • A reference to writing or written includes email.
   • Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.
   • We reserve the right to amend our Terms and Conditions from time to time and without notice.
   • Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.

4. Representations
   • You acknowledge that no employee or agent of Ours has the right to make any representation, warranty, or promise regarding the supply of Goods or Services beyond what is contained in the Conditions.

5. Notices
   • Any notices under these Conditions must be in writing and sent via email to Your last provided email address.

6. Governing Law
   • The Conditions will be governed by and construed in accordance with the laws of England. The parties submit to the non-exclusive jurisdiction of the Courts of England.

7. Assignment
   • You may not assign Your rights and obligations under an Agreement without Our prior written consent.

8. Variation of These Terms and Conditions
   • We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. You accept that by doing this, We have provided You with sufficient notice of the variation. We are under no other obligation to notify You of any variation to these terms and conditions.

9. Severability, Governing Law, and Waiver
   • In the event that any provision herein is found to be invalid or unenforceable, such provision shall be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of an Agreement shall remain unaffected and in full force.
   • An Agreement shall be governed by and construed in accordance with the laws of the United Kingdom. Any disputes arising from or related to an Agreement shall be exclusively submitted to the jurisdiction of the courts of the United Kingdom.
   • The failure of any party to enforce any provision of an Agreement shall not constitute a waiver of such provision or any other provision.

10. Commitment Term
    • The minimum term for acquiring the service is outlined in Our quotes to You, starting from the first day of the following month after the date of signing or approving the quote. If services are required to commence before the first day of the next month, a prorated balancing charge for the number of days between service initiation and the first day of the subsequent month will be applied to your initial invoice.
    • Upon the expiration of the Committed Term, an extension of the Term will automatically commence for the same duration as the original Committed Term and will continue indefinitely, unless terminated earlier by you with a notice period of 12 months. If the agreement is for 12 months or less, termination requires a notice period of 3 months.
    • Any automatic renewal of agreements will be subject to an increase in fees at Our discretion with a minimum of inflation and other costs as appropriate.
    • Any contracts may be assigned by Kookaburra Technologies Limited or its subsidiaries to any company without Your consent.

11. Quotes
    • Term and Effect: Quotes remain valid for 14 days unless specified otherwise. Acceptance of a Quote by You is an invitation to place an Order with Us and does not create a binding contract between You and Us.
    • Quote Validity: Expiry dates indicate active or discarded quotes. Discarded quotes need to be re-requested.
    • Confirmed Quotes: Upon confirmation by Us, the quoted prices become the final agreed price, established upon mutual agreement following any last-minute changes requested by You.
    • Price and Product Variations: Final quoted prices may vary from the original request due to changes initiated by You. We retain the right to modify product and prices in the quote until confirmed with You.
    • Interpretation of Quotes and Estimates: Quotes and estimates shall be deemed to correctly interpret original specifications and are based on costs at the time of issuance. If You later require any changes to the quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.
    • Order Confirmation: A confirmed and converted Quote is subjected to our standard Terms and Conditions of Sale.
    • Special Offers and Promotions: Application of special prices or discounts nullifies other offers or bonuses.
    • Price and Product Fluctuations: In the event that products in the Quote are subjected to any price and supply fluctuations that is outside of Our control We reserve the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.
    • Non-Stocked Product Pricing: Price on non-stocked products are subjected to Price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While We endeavour to honour every price quoted, if there is a price increase that is beyond our control, We reserve the right to increase the price as necessary.
    • Expired Quotes: Expired Quotes may be cancelled without prior notification or approval.
    • ETA Information: Estimated Time of Arrival (ETA) is vendor-based and not a guaranteed delivery date.
    • Freight Charges: Unless specified otherwise, freight charges apply. Delivery charges are estimates only.
    • Inventory Policy: We do not keep inventory and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund, as not all products can be returned.
    • Manufacturer’s Warranty: Unless specified, all items on the quote are covered by the manufacturer’s warranty, covering parts and labour for hardware only on a return-to-Us basis.
    • Varying or Withdrawing Quotes: We reserve the right to vary or withdraw Quotes at Our absolute discretion without prior notice, particularly if Goods or Services become unavailable or costs increase after the Quote’s date.

12. Purchase Orders
    • Placing Orders: You can place an Order for Goods and/or Services with Us. Generally, We require a Purchase Order form or electronic approval via email or a web-based system, including the date and Your full legal name (or the full name or description of the person placing the order on Your behalf) along with Your address and any relevant Quote number and date.
    • Order Approval: You must sign the Purchase Order or have it duly executed unless sent via email or the web-based system, where it is considered signed by or on behalf of You by the person named as the sender or submitter.
    • Reliance on Validity: In the absence of contrary knowledge, We may rely on the apparent validity of an Order. When an Order is signed, emailed, or approved via the web system by a named person, they warrant that the Order is deemed:
      • Signed and duly authorized by both the signatory and the email sender.
      • Duly authorized by the person on whose behalf the Order is placed or apparently placed.
    • Order Acceptance: An Order becomes effective upon Your written acceptance and receipt of payment in clear funds for the Order, related freight, delivery, and, if applicable, in-transit insurance costs, unless prior payment arrangements were made with the quote provider.
    • Delivery Obligations: We’re not obligated to deliver until receiving clear funds for the Order, related costs, or if unwilling or unable to complete the Order, refund any payment made by You, unless prior payment arrangements were made with the quote provider.
    • Credit Checks: You consent to Us conducting a credit reference check to ascertain the credit standing or history of a prospective customer for extending credit or payment terms.
    • Order Cancellation: You cannot cancel an Order unless Our written agreement is obtained at Our absolute discretion. Once manufacturers or suppliers dispatch relevant Goods, Orders can’t be cancelled, typically occurring the same day as the Order placement.
    • Processes and Procedures: We have established processes and procedures for providing Services and supplying Goods. You agree to cooperate with and adhere to these processes and procedures as advised from time to time.

13. Pricing and Rates
    • Rates Exclusive of Tax: All rates and quoted amounts for Goods and/or Services provided are exclusive of Tax or other applicable government charges unless stated otherwise in writing by Us.
    • Rate Schedule: Payment for Goods and Services must align with the Rates detailed in the applicable Plan and the Rate Schedule effective during the provision of Goods and/or Services.
    • Rate Variations: We reserve the right to periodically vary any Rate and/or the Rate Schedule (except for fixed pricing in specific periods within any Plan) without prior notice.
    • Call-out Fees: Acknowledge that call-out fees may be added to the Rates at Our discretion, depending on the location of Service provision.
    • Return/Cancellation Fees: Reserve the right to charge a Return/Cancellation fee for administrative costs incurred due to returns, refunds, or cancellations post-acceptance, deductible from any due refund.
    • Expenses: You are liable for reimbursing Us for out-of-pocket expenses related to Services provided, including travel, accommodation, and meal allowances, upon written demand and with prior authorization.
    • Separate Charges: We may invoice Goods and Services separately or combine them into a single charge, at Our discretion.
    • Incremental Calculation: Charges based on time increments will incur the applicable rate for the whole increment, even for partial usage.
    • Cost Fluctuation: In case of increased underlying costs associated with providing Goods or Services, We may adjust Our Rates at Our discretion without prejudicing other rights.
    • Payment Terms: All sums payable to Us under any agreement shall be paid in full without any set-off, counterclaim, deduction, or withholding, unless required by law. Products, Hardware and Software will be invoiced upon delivery to You. Services will be invoiced monthly in advance.
    • Invoice and Payment: Invoices shall be paid within 14 days of receipt to the nominated bank account via Direct Debit, with an extra administration charge for non-Direct Debit payments at Our discretion. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
    • Late Payment: Failure to pay on time incurs interest on the overdue sum and may result in partial or complete suspension of Product, Software, and/or Service delivery until full payment.
    • Charge Adjustments: We reserve the right to increase Charges after a Renewal Term, providing notice of 30 Business Days and adjusting Charges due to cost increases or annual adjustments based on RPI inflation index or 2%.
    • Support Services Limitation: We provide Support Services for the Products within their useful age as listed in the Approved Products List. Older hardware may incur additional complexity charges at Our discretion with a minimum notice of 20 Business Days.
    • Payment for Hardware: Unless agreed otherwise, if the project involves hardware: If not agreed to pay 1/3rd of the project costs upfront at project commencement, hardware costs are to be paid upon delivery to Your site, location, or offices. Terms for hardware payment are 14 days.
    • Service and Plan Variations: We reserve the right, at Our absolute discretion, to modify, withdraw, add to, or alter the scope or terms of the Services or Plans outlined in the Rates Schedule and any Plan Schedule without providing prior notice to You.
    • Copies on Request: Upon request, We will furnish You with a current Rates Schedule. Plan Schedules tailored to specific Plans are available to Clients participating in the respective Plan.
    • Contracting: We retain the authority to subcontract any or all Services, while maintaining prime responsibility for these Services under these terms.

14. Additional Work
    • From time to time, You may request that Supplier provides Additional Work. Subject to the Parties agreeing the scope of such Additional Work, such Additional Work shall be provided on a time and materials basis in accordance with the then current Rate Card (unless agreed otherwise).
    • Where Additional Work is provided to You, such Additional Work shall be provided in accordance with a SoW agreed between the Parties from time to time.
    • Once a SoW has been agreed and signed by the Parties, it shall: (i) be deemed to be a part of the Agreement; (ii) automatically incorporate the relevant terms and conditions of the Legal Terms; and (iii) not form a separate contract to the Agreement.

15. Delivery, Title, and Risk
    • Delivery Liability: We commit to dispatching Goods within a reasonable time frame but cannot be held liable for non-delivery or delayed delivery due to circumstances beyond Our reasonable control, such as supply failures or delays caused by third parties like delivery companies or manufacturers.
    • Availability for Delivery: You must ensure availability to accept delivery of the Goods at Your specified address during Business Hours unless otherwise agreed upon.
    • Passing of Risk: The transfer of risk occurs upon delivery of the Goods to Your nominated address, at which point all risks, including loss, breakage, and damage, are transferred to You. This clause does not impact the title to the Goods.
    • Obligation to Insure: You are responsible for adequately insuring Goods from the moment of delivery as per clause 3.
    • Retention of Title: Until full payment in cleared funds for all amounts owed to Us:
      • Title and property in Goods supplied remain with Us and do not transfer to You.
      • You must hold these Goods as a fiduciary bailee and agent for Us and refrain from selling them.
      • The Goods must be kept separate and maintained in their original state.
      • In case of unauthorized sale, You are required to hold proceeds from such sales on trust for Us in a separate account.
      • We reserve the right, without prior notice, to enter premises, take possession of, and remove Goods for which payment hasn’t been received, indemnifying Us against associated costs.

16. Returns and Claims for Goods and Services
    • General Returns Policy: You acknowledge that the supply of Goods is subject to the applicable conditions, including return and claims policies, of relevant manufacturers or suppliers. You agree to accept Goods in adherence to these Conditions and associated terms, indemnifying and holding Us harmless for any obligations, failures, or defaults on the part of the manufacturer or supplier.
    • Customised Goods not returnable: Goods subject to customization, procured from overseas, obtained from an inactive supplier, or otherwise non-returnable by Us, as deemed special or unusual, cannot be returned or have related services cancelled by You.
    • Duty to Inspect: Upon delivery, You must inspect all Goods promptly. Within 7 days of delivery, written notice must be provided to Us if You intend to return Goods, request a refund, or make a claim. Failure to provide timely notice indicates acceptance of the Goods without the option for return, refund, or claim.
    • Return Condition: If entitled to return Goods under these Conditions, Goods must be returned in their original unopened condition. However, if upon opening the packaging, discrepancies or faults are discovered compared to the description on the packaging, the Goods may be returned.
    • Return Costs: All expenses incurred by Us in facilitating the return of Goods to a manufacturer or supplier and/or the cancellation of related services must be covered by You. You accept that return costs can only be refunded to you if the manufacturer or supplier subsequently assumes such costs.
    • Consequences of Use, Installation, Customisation, or Sale: Once Goods are utilized, installed, customized, or resold by You, any claims or allegations regarding these Goods become your responsibility. This includes registering software keys or licences, or utilising or activating cloud services. You agree to indemnify Us from claims related to the Goods once they have been subjected to such actions.

17. Computer Utility, Functionality, and Fitness for Purpose
    • Service Limitations Given the Science of Computing: You acknowledge that the Services may involve trial and error, being a science often applied in novel or unknown circumstances, and may include experiments. Despite our efforts to provide appropriate tests, troubleshooting, advice, and recommendations, You agree to indemnify and hold Us harmless for any incorrect or inappropriate actions taken during the provision of our Services to You. You also agree for the same reasons that, unless agreed in writing such as with procurement of a fixed price project, that You will cover costs for experiments, R&D and design work associated with your project.
    • Reasonable Assistance Limits: Our obligation to provide reasonable assistance is at Our discretion and limited to what We consider reasonable under the circumstances, especially concerning new software or hardware installation or customization. Additional work beyond the standard assistance will be charged at the Rates unless otherwise agreed. You agree to pay for Additional Work outside of the SoW, or beyond the project duration at the current Rates, unless agreed by Us in writing.
    • Recommendations, Suitability, Functionality, and Fitness for Purpose: Both parties acknowledge the following:
      • We may recommend third-party Goods based on Your specified purposes or functions.
      • We have no control over various factors affecting the suitability, function, or fitness for purpose of Goods in a computer environment.
      • Goods may fail to meet expectations or may not be suitable due to reasons outside Our control.
      • You bear sole responsibility for decisions regarding recommendations, Goods, or Services purchased for specific purposes.
      • Payment for Services is due regardless of the achieved outcome, provided We acted in good faith and made reasonable efforts to meet the agreed purposes.
    • Testing Procedures: You agree to follow Our instructions for testing or troubleshooting any issues. If these procedures fail to resolve outstanding problems, We will allocate reasonable resources, as deemed appropriate under these Conditions, for their resolution.

18. Force Majeure
    • Force Majeure: In case We’re unable to supply Goods or Services due to circumstances beyond Our reasonable control, We reserve the right to cancel the Order or cease Services upon written notice to You. In such cases, You agree to hold Us harmless.
    • Exceptions Beyond Our Control: We won’t be liable for breaches caused by matters beyond Our control, including failures by third parties to supply goods or services, natural disasters, strikes, wars, or government interventions.

19. Product Specifications
    • Alterations to Specifications: We strive to deliver Goods as per the Order but may supply alternative Goods with minor variations in dimensions or specifications if changes are made by the manufacturer after the Order date but before delivery.
    • Substitute Goods: If the ordered Goods are unavailable, We may provide substitute Goods of equal or superior quality at the agreed-upon price.

20. Warranties
    • Reliance on Manufacturer’s Warranty: You are expected to rely on the warranties provided by the manufacturer for Goods supplied by Us and handle claims covered by those warranties directly with the manufacturer.
    • No Claim for Manufacturer’s Default: You indemnify and hold Us harmless for any manufacturer default or breach of warranties regarding Goods supplied by Us.

21. Liability
    • Exclusion of Warranties: Save as explicitly provided herein and as permitted by law, any implied terms, conditions, or warranties concerning the quality, fitness for purpose, condition, description, assembly, manufacture, design, or performance of Goods or Services are expressly excluded, whether implied by statute, common law, trade usage, custom, or otherwise.
    • No Liability for Program or Data Loss: You indemnify and hold Us harmless from any allegation, claim, loss, or expense arising directly or indirectly from program or data loss or damage suffered by You or any third party due to the supply of Goods or Services by Us. You acknowledge Your sole responsibility for backing up programs and data to mitigate potential losses.
    • Limitation on Consequential Damage: You indemnify and hold Us harmless against any claim for indirect or consequential losses or expenses suffered by You or any third party, including loss of turnover, profits, business, or goodwill arising from any cause.
    • Limitation on Damages from Supply Failure: You indemnify and hold Us harmless for any loss or damage incurred if We fail to meet delivery dates or cancel or suspend the supply of Goods or Services.
    • General Limitation of Liability: Except as otherwise expressly stated herein, We are not liable for any kind of loss or damage suffered by You, including negligence on Our part, in connection with the Goods or Services provided, these Terms and Conditions, Your use of Our website (including the use of a credit or debit device), non-availability of Goods or Services, Our acts or omissions, or for any other reason whatsoever.
    • Limitation Options: Where legislation implies a condition or warranty that can’t be excluded but can be limited, his clause doesn’t apply to that liability, and Our liability is limited to, at Our discretion: replacing Goods, repairing Goods, paying the cost of replacement or repair, or paying the cost of acquiring equivalent Goods or Services.
    • Application of Laws: These Conditions don’t exclude, restrict, or modify the application of any UK legislation applicable to Goods or Services that can’t be excluded, restricted, or modified.
    • Severance: Unlawful, invalid, or unenforceable provisions may be severed without prejudicing the validity and enforceability of the remaining provisions.

22. Errors And Omissions
    • Accuracy in Descriptions and Prices: We make every effort to ensure accurate prices and descriptions. In the event of an error or omission, We reserve the right to rescind the affected contract by written notice to You, even if We have accepted Your Order or received payment. Our liability in such cases is limited to refunding any money paid for the Order.

23. Confidentiality
    • Ownership and Intellectual Property: Client retains ownership of any data, information, or intellectual property provided to Provider in connection with an Agreement. Intellectual property resulting from the Services, including software (in machine-readable and source code form) and data, will belong to Provider unless agreed in writing. Provider’s intellectual property related to Provider’s business will remain the property of Provider.
    • License Terms: Client has the right to use Provider’s intellectual property solely in connection with the services, for the purpose for which those products were originally purchased.
    • Restrictions on Provider Proprietary Items: Client may not transfer, sell, or dispose of any Provider proprietary items without the prior written consent of Provider.
    • Ownership Rights: This license does not grant title or ownership rights in Provider intellectual property or related intellectual property to Client.
    • Confidentiality of Software Source Code: If software source code is delivered under this license, Client agrees to keep it strictly confidential. If software object code is delivered, Client will not copy or modify the software or attempt to create computer source code from Provider intellectual property.
    • Retaining Copyright Notices: Client agrees to retain or reproduce all copyright notices, proprietary legends, and trademarks or service marks of Provider on all copies of Provider intellectual property.
    • License Assignment: Client has no rights to assign or sell the license granted herein without written permission from Provider
    • Separate Licensing Agreements: Separate licensing agreements will be negotiated for any of Provider’s commercial off-the-shelf type products if ordered by Client.

24. Our Responsibilities

Privacy Statement And Your Rights

• Collection of Personal Information: We collect Your personal information for Quotes, Orders, and providing Goods or Services, retaining and using it for such purposes (“Authorised Purposes”).
• Requirement for Providing Personal Information: You are required to provide Your personal information to Us for Authorised Purposes.
• Disclosure of Personal Information: We may disclose Your personal information to fulfil Orders, verify information, acquire or provide Goods or Services, or for related inquiries.
• Information Handling: Your personal information is held at Our Principal Place of Business. You can contact Us to request access or corrections.
• Accuracy of Information: You are responsible for providing correct information; incorrect details may result in additional expenses.

Our Website

• Representation Disclaimer: We make no representations or warranties regarding the completeness, correctness, or continuous availability of information on Our website.
• Endorsement Disclaimer: We do not endorse any linked internet sites or third-party products or services referred to on Our website. Linked or liked sites or posts on social media are not endorsement by Us, even if by Our staff.

Insurance Coverage

• Maintaining Insurance: We maintain commercial general liability insurance for personal injury and property damage, providing certificates upon request.

25. Your Responsibilities

Lodging Of Service Requests

• Compliance: You agree to follow Our outlined process for lodging Service Requests according to the current methods which we may change from time to time.

Access To Systems, Sites, and People

• Granting Access: You agree to provide Us access to Your equipment, people, and sites as required for delivering the agreed Services.
• Installation of Software: You allow Us to install software for system access purposes, permitting monitoring and control of Your systems at all times. This software allows Us to view system statuses, send monitoring information, see users’ desktops, and control Your PC’s. This may require that devices are left on overnight or weekends. You accept that it is your responsibility to update any policies in Your organisation to allow this, including Your staff employment policies and contracts.

Third Party Authorisations

• Authorization Management: It is Your responsibility to enable Us to interact freely with Your third-party providers, securing necessary authorizations for dealing on Your behalf.

Payment, Late Payment, And Default

• Payment Due: Unless agreed in writing, invoices are payable within fourteen days and payable by direct debit as per these Terms and Conditions. We reserve the right to charge an administration or handling fee for manually collected payments.
• Late Payment: Failure to pay within seven (7) days may result in the suspension or discontinuation of Goods and/or Services.
• Cost Recovery: Costs incurred in recovering late payments will be added to the amount due, alongside interest charged at the maximum rate allowed by law.
• Payment Allocation: Payments will be applied first to cover costs, followed by interest, and then to Your debts to Us.
• Security Requirement: We may require security over Your property as collateral for any amounts due.
• Payment Arrangements: Failure to adhere to repayment arrangements may lead to the suspension or discontinuation of Goods or Services.
• Power of Attorney: You appoint Us as Your attorney for the recovery of any Sum Due or for enforcing any collateral held as security.
• Other Remedies: We may exercise all rights and remedies, including legal action, for the recovery of any amounts due.

Non-Solicitation Of Clients And Employees

• Employee Non-Solicitation: You agree not to offer employment to Our employees during the engagement and for a period of two (2) years thereafter. You agree that Our damages resulting from breach of this clause would be impracticable and that it would be extremely difficult for Us to ascertain the actual amount of damages. Therefore, in the event You violate this provision, You agree to immediately pay Us 100% of the employee’s total annual salary, as liquidated damages and We shall have the option to terminate an Agreement without further notice or liability to You. The amount of liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs We would incur to identify, recruit, hire and train suitable replacements for such personnel.

Software

• Software Licenses: You are responsible for storing all Software licenses used. Any claim arising from unauthorized Software use or breach of license is Your responsibility.
• Ownership of Custom Software: Copyright in custom software remains Our property unless otherwise agreed.

26. Termination
    • An Agreement may be terminated by Us upon ninety (90) days’ written notice to you.
    • We will assist you in the orderly termination of services, including timely transfer of the services to another designated provider.
    • You agree to pay us for rendering such assistance at our normal rates as outlined in our current Rate Schedule.
    • Should You wish to terminate an Agreement before the end of the commitment term, You agree to pay all of the remaining payments up until the end of the commitment term.

27. Termination and Payment Obligations
    • Termination by Customer: You acknowledge and agree that termination of any agreement before the expiration of the contracted term is subject to the terms and conditions set forth herein.
      • In the event that You decide to terminate an agreement prior to the completion of the contracted term, You shall be liable to pay any and all remaining fees and charges associated with the unexpired portion of the contract.
      • In the event that You decide to terminate an agreement prior to the completion of its contracted term, You shall be liable to pay out the remaining or unexpired portions of all other agreements and contracts with Us.
      • Such payment obligation is absolute and unconditional, and You hereby expressly agree to remit the remaining contract fees promptly upon termination, as calculated in accordance with the pricing and payment terms specified in the agreement.
    • Calculation of Remaining Contract Fees: For the purpose of determining the remaining contract fees, You agree that any discounts, promotions, or special pricing provided under the agreement shall be null and void upon termination, and the standard undiscounted rates shall apply to the calculation of the remaining fees.
      • The calculation of the remaining contract fees shall take into account the contracted term, any applicable billing cycles, and the specific services or products outlined in the agreement.
    • Payment Terms: You shall make payment of the remaining contract fees within 14 days of the effective date of termination.
      • Failure to make timely payment of the remaining contract fees shall constitute a material breach of the agreement, entitling the Provider to pursue all available legal remedies, including but not limited to, the initiation of legal proceedings to recover the outstanding amounts.
    • Liquidated Damages: The parties agree that the remaining contract fees represent a reasonable estimate of the damages incurred by the Provider as a result of early termination.
      • You acknowledge that the remaining contract fees serve as liquidated damages and not as a penalty, and You expressly waive any argument to the contrary.
    • Maintenance Surcharge for Partial Termination: In the event You elect to terminate only specific managed services while keeping other contracts in place, a monthly maintenance surcharge shall apply to all surviving contracts or agreements.
      • The maintenance surcharge shall be calculated based on the nature and extent of the managed services retained by You and will be communicated to You upon notification of the partial termination.
      • You agree to pay the monthly maintenance surcharge in addition to any remaining contract fees as outlined above.
    • Survival of Obligations: Notwithstanding the termination of the agreement, Your payment obligations under this Section shall survive and continue to be binding upon You until full satisfaction of the remaining contract fees.

28. Copyright And Confidentiality
    • Warranty and Breach: You warrant that any confidential or copyright information or intellectual property provided by You to Us belongs to You. In the event of a breach, You will pay all sums due to Us as If such warranty had not been breached (and regardless of any non-performance of any obligation by Us on account of or in connection with the breach of such warranty). You indemnify and hold Us harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by You.
    • Retention of Title: All copyright and other intellectual property rights in Work created by Us during Services will be exclusively Ours unless otherwise agreed in writing.
    • Confidential Information: We acknowledge learning confidential information about You, including customers or employees, during Services. Such information shall be treated as confidential. Both parties will take reasonable steps to safeguard and not disclose any part of such information unless permitted in writing or as required by law.
    • Non-disclosure: You also acknowledge that all information and services, consulting techniques, proposals, and documents disclosed by Us or which comes to Our attention during the course of business and provided under an Agreement constitute valuable assets of, and confidential and/or proprietary information to Us.
      As such, both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose except unless permitted in writing by the disclosing party or as required by applicable law.

29. Data Protection – GDPR
    • Definitions:

“Data Protection Laws” refers to the Data Protection Act 2018 (“DPA”), the General Data Protection Regulation 2016/979 (“GDPR”), the Privacy (Electronic Communications) Regulations 2003, the Data Protection (Charges and Information) Regulations 2018, and all Applicable Laws and instruments relating to the processing of personal data and privacy.

“Information Commissioner” holds the meaning given in the DPA.

“Personal Data” holds the meaning given in the DPA.

• Compliance with Data Protection Laws: Both parties agree to comply with all applicable requirements of the Data Protection Laws. This clause supplements but does not replace the obligations under the Data Protection Laws.
• Controller and Processor:
• The parties acknowledge that for Data Protection Laws, You act as the controller and We act as the processor.
• Your Obligations: You warrant that it possesses necessary rights, consents, and notices to enable lawful transfer and provision of personal data to Supplier.
• Our Obligations: Supplier shall, concerning Personal Data processed as part of its obligations under an Agreement, comply with obligations as set out in Data Protection Laws, including:
  • Processing Personal Data solely for the purpose of an Agreement.
  • Ensuring confidentiality of Personal Data accessed by Supplier Personnel.
  • Implementing appropriate technical and organizational measures to protect Personal Data against unauthorized processing or accidental loss.
  • Compliance with obligations regarding engaging another processor.
  • Maintaining accurate records demonstrating compliance and facilitating audits by You.
• Data Transfers: Supplier will not transfer, store, or process Personal Data outside the European Economic Area without Your prior written consent, except as stipulated in an Agreement.
• Assistance and Notification: Supplier shall assist You in responding to data subject requests, complying with Data Protection Laws, and promptly notifying You of Personal Data breaches.
• Complaints and Notifications: Supplier shall promptly notify You of any complaint or communication related to Data Protection Laws and provide cooperation and assistance to resolve such issues.
• Sub-contracting: You authorise Supplier to subcontract processing activities to third parties.
• Ownership and Responsibility: You own all Customer Data and is responsible for its legality, integrity, and accuracy, including regular backups.
• Data Loss or Damage: In case of data loss or damage by Supplier, Your sole remedy shall be for Supplier to make reasonable efforts to restore the lost or damaged Customer Data.

30. TUPE
    • Definitions:

“Employee” refers to an employee or worker of You or an Existing Provider, wholly or mainly assigned to any functions similar to some or all of the Services before the Transfer Date.

“Existing Provider” denotes a third party conducting functions on behalf of You, similar to some or all of the Services before an Agreement.

“Replacement Provider” represents an alternative provider appointed by You to perform some or all of the Services.

“Returning Employee” signifies an employee or worker mainly engaged in the Services that cease to be provided by Us and transfer to You or a Replacement Provider under TUPE on termination, variation, or expiry of an Agreement.

“Subsequent Transfer Date” indicates the date of transfer of responsibility for the provision of Services for a Returning Employee between Us, You, or a Replacement Provider.

“Transfer Date” refers to the date of transfer of responsibility for providing Services to which an Employee is mainly assigned from You or an Existing Provider to Us.

“TUPE” stands for the Transfer of Undertakings (Protection of Employment) Regulations 2006.

• Transfer of Employees: While it’s not anticipated that providing Services will lead to Employee transfers to Us, if such a transfer occurs under TUPE, We hold the right to terminate the Employee’s employment at Your expense, provided it occurs within 90 days of Us becoming aware of the transfer. You will indemnify Us against all Losses concerning the Employee’s employment and termination costs.
• Indemnification for Losses: In case of an Employee transfer under TUPE:
  • You will indemnify Us against all Losses related to any act or omission before the Transfer Date concerning Employees.
  • You will also indemnify Us against Losses regarding Returning Employees’ default or claims after the Subsequent Transfer Date.

31. Conflict Resolution of Agreements
    • If there is any conflict or ambiguity between the terms of a Third-Party Agreement, the Cover Sheet, the Legal Terms, the Rate Card and the SoW, the following order of priority shall apply:
      • the Third-Party Agreement;
      • the SoW
      • the Cover Sheet;
      • the Rate Card;
      • the Annexes; and
      • these Terms.