PART A- DEFINITIONS AND INTERPRETATION
The definitions and rules of interpretation in this Part A apply throughout these Terms of Sale.
Agreement: these Terms of Sale together with the Order Form.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change Control Procedure: the procedures set out in clause 13.
Customer Data: any information that is provided by the Customer to Solutions4IT as part of the Customer’s use of the Services, including any information derived from such information.
Customer Personal Data: any Personal Data comprised in the Customer Data.
Customer Site: any premises occupied by the Customer at which it receives the Services.
Customer’s Operating Environment: the Customer’s computing environment (consisting of hardware, software and telecommunications networks) that is to be used by the Customer in connection with its use of the Services and which interfaces with Solutions4IT’s System in order for the Customer to receive the Services, but excluding the Customer-side Equipment.
Customer-side Equipment: any equipment, including Hardware, located or to be located on a Customer Site but controlled or to be controlled exclusively by Solutions4IT as part of the Services.
Effective Date: the date specified as such on the Order Form or, in the absence of such a date, the date on which the Order Form is provided to the Customer.
Fees: the fees payable to Solutions4IT for the supply of the Hardware and/or Services, as detailed in the Order Form.
Hardware: any hardware to be supplied to the Customer by Solutions4IT as outlined in the Order Form, whether such Hardware is on a pay for supply basis, or lease hire arrangement, including Meter Charge Hardware.
Initial Term: the term outlined as such in the Order Form or, failing such detail, the period of 1 year starting on the Effective Date.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Meter Charge Hardware: Hardware to be supplied by Solutions4IT that is charged for on a usage basis instead of, or in addition to, on a supply basis.
Normal Business Hours: Monday to Thursday 08:00 – 17:30 (17:00 Fridays) local UK time on Business Days.
Order Form: the form as attached to these Terms of Sale.
Services: the Services to be provided by Solutions4IT to the Customer as more specifically detailed in the Order Form.
Software: any software used by Solutions4IT to provide the Services to the Customer whether owned by a third party (Third-Party Software), by the Customer (Customer Software) or by Solutions4IT (Solutions4IT Software).
Solutions4IT’s System: the information and communications technology system to be used by Solutions4IT in performing the Services.
Supported Software: the software operated on the Customer-side Equipment and in the Customer Operating Environment which Solutions4IT will support, as part of the Services, as detailed in the Order Form.
PART B – TERMS OF SALE
The following terms apply in respect of the sale of hardware, software and other items to the Customer (Hardware). For the avoidance of doubt if the Customer only wishes Solutions4IT to provide Services the following terms do not apply.
1. Ownership and Insurance
1. Where Solutions4IT has supplied Hardware to the Customer, it remains the property of Solutions4IT, or the lease hire company (as appropriate) until full payment has been received by Solutions4IT, whether from the Customer or the finance company on the Customer’s behalf as part of the Customer’s lease arrangements. Where Solutions4IT arrange the leasing of the Hardware to the Customer through a leasing company this is on the leasing company’s conditions and is between the Customer and the leasing company not with Solutions4IT. Solutions4IT shall only be responsible for such Hardware where specified as such in the Order Form.
2. When Solutions4IT has delivered the Hardware to the Customer, the Customer is liable for the risk of any loss or damage to the Hardware. This will stay the Customer’s risk unless Solutions4IT takes the Hardware back. It is the Customer’s responsibility to insure the Hardware and itself against loss or damage.
3. Until the Customer has paid for the Hardware, the Customer must not do, or allow anything to be done which is inconsistent with Solutions4IT’s ownership of them. In particular the Customer must not alter or sell them or otherwise dispose of them. The Customer must ensure that it can be identified as belonging to Solutions4IT.
4. If the Customer does not make its payments when they are due, or if before the Customer pays for the Hardware, it goes into liquidation or receivership or commit any act of bankruptcy, or if Solutions4IT thinks any of these may happen, the Customer agrees to allow Solutions4IT to enter the Customer Site, without notice, and take the Hardware back and claim any money the Customer owes Solutions4IT under this Agreement or any other contract.
5. The Customer agrees that the Customer cannot send the Hardware back instead of paying for them. Solutions4IT may take legal action to recover the price even though title of the Hardware may not have passed to the Customer.
6. When there is a shortage of Hardware for reasons beyond Solutions4IT’s control, Solutions4IT will distribute as much Hardware as Solutions4IT can to Solutions4IT’s customers depending on availability. Solutions4IT will not be liable for any shortfalls under this clause.
1. The Customer agrees that one of the Customer’s employees will clearly sign and print their name and the date on the delivery note that comes with the Hardware to prove that the items on it have been delivered. Solutions4IT will not accept claims for shortages unless the Customer has notified Solutions4IT of any such shortage, in writing, within 48 hours of delivery.
1. The Customer agrees that any Hardware is suitable for the Customer’s needs and meets the Customer’s requirements. Unless otherwise agreed in the Order Form, the Customer is responsible for ensuring that the Hardware is compatible with the Customer-side Equipment.
PART C – TERMS OF SERVICE
The following terms will apply to this Agreement in respect of the Services.
Unless agreed otherwise in writing Services do not include work needed:
1. because the Customer has not used, stored or handled the Hardware properly, or because the Customer has not followed these Terms of Sale or Solutions4IT’s instructions, or those of the Hardware manufacturer;
2. outside of Normal Business Hours unless Solutions4IT agree otherwise in writing;
3. because the Customer has used parts or other replaceable items with the Hardware which are not approved by Solutions4IT;
4. because the Customer connected other fittings or accessories to the Hardware which Solutions4IT have not approved;
5. because of any disconnection and reconnection of the Hardware by anyone other than Solutions4IT, including any preparation necessary for safe transit
6. because of the installation of, damage to, or modification of the Hardware by someone else other than Solutions4IT or because of changes required by the Customer or a third party;
7. because of the malfunction resulting from any item of equipment or software which the Customer has linked to the Hardware or any changes that the Customer has made to the Customer-side Hardware and/or Customer Operating Environment;
8. because of events falling under the scope of clause 19;
9. to correct errors in any non-proprietary software or other software not supplied by Solutions4IT;
10. because data is lost or damaged;
11. in respect of any item not specified in the appropriate sections of the Order Form.
1. Solutions4IT will install and/or maintain the Hardware as outlined in the Order Form.
2. All quotes for the supply and installation of the Hardware are valid for a period of 30 days.
3. Solutions4IT strongly recommends that the Customer has a pre-installation survey completed prior to the commencement of supply of any Hardware and/or Services as it provides a working document for both parties listing the Customer-side Equipment and highlighting any additional areas that Solutions4IT can help the Customer improve on. If, however, the Customer does not wish to have this service provided, Solutions4IT cannot be liable for any unforeseen installation or configuration costs that may arise that would have been foreseen had this service been provided.
4. All support contracts are based on an average response time of one Business Day unless specifically documented within the Order Form.
5. Basic installation covers the Customer for the connection of the Hardware to a maximum of two workstations and an initial training period of one hour. Additional installation and training services can be ordered separately.
6. Subject to clause 5.8, Solutions4IT will use commercially reasonable efforts to maintain the relevant Hardware to prevent a fault arising. Solutions4IT will also provide parts and items that need replacing, at prices to be agreed, except for consumable items such as paper, staples and toner (will be included where this is stated in the Order Form).
7. The Customer agrees to ensure that the Customer Site is suitable and in good condition in accordance with Solutions4IT’s instructions.
8. The Customer agrees to tell Solutions4IT in writing if the Customer intends to move the Hardware in order that Solutions4IT may update Solutions4IT’s maintenance records. If the Hardware is moved Solutions4IT reserves the right, at its sole discretion, to immediately alter the Fee to take into account such change, or, to terminate this Agreement on giving the customer not less than 14 days’ written notice.
9. The Customer agrees to let Solutions4IT or any of its authorised representative into the Customer Site where the Hardware and Customer-side Hardware is installed during Normal Business Hours to provide the Services. Solutions4IT will follow any reasonable security and health and safety rules, which may apply at the Customer Site.
10. Where, due to the action or inaction of the Customer, Solutions4IT or its authorised representatives are unable to gain access to the Customer Site, or are unable to provide the Services, Solutions4IT shall be entitled to charge the Customer for any reasonable time and costs incurred in attending the Customer Site, such charges in addition to the Fees.
11. The Customer acknowledges that, at all times, the provision of the Services and the supply of Hardware is subject to the availability of the necessary parts, consumables and support services.
The Customer agrees to submit a meter reading as and when requested.
6. Equipment Maintenance Fees
1. In respect of Meter Charge Hardware Solutions4IT will charge the Customer for the number of units registered on the meter(s) as having been consumed/used since the Customer’s last invoice. Solutions4IT will charge the Customer at the current cost per copy, fax, print & scan as set out in the Order Form and varied by Solutions4IT under clause 8.
2. Where Solutions4IT is supplying the Customer with printer and photocopier toner, as specified in the Order Form, any additional toner required will be charged at the current rate as notified to you from time to time. For the avoidance of all doubt, in respect of multifunctional devices (for example, photocopiers), one unit is equal to an output up to the size of an A4 sheet of paper. Copies produced which are larger than A4 size will be charged as two units.
3. Solutions4IT will take meter readings by: (a) faxing or emailing the Customer a meter request form, that the Customer’s is requested to complete and return within 5 working days of receipt; (b) by one of Solutions4IT’s engineers taking the reading after servicing the equipment; (c) by email, telephone, online or software collection; or (d) using Solutions4IT’s records of the Customer’s previous readings to estimate the amount. The difference between estimated and actual readings will be reconciled on the Customer’s next meter reading.
4. Toner inclusive contracts are carefully monitored and if it is deemed that toner consumption is greater than the percentage coverage as stated in the Order Form additional Charges may apply and Solutions4IT reserves the right to increase the Charges for such Services in accordance with the procedure outlined in clause 13.
5. For any non-meter based equipment identified in the Order Form the Customer agrees to pay the Charges set out in the Order Form in advance for the maintenance period, which starts on the date of the Agreement or later if Solutions4IT have so specified. Another Equipment charge will become due on each anniversary of the date of this Agreement or as otherwise indicated in the Order Form.
7. Other Services Fees
1. All other Services will be charged at the rate set out in the Order Form or as otherwise agreed in writing.
8. Service Fee Increases
1. Except where otherwise stated in this Agreement Solutions4IT reserves the right annually to increase the Fees set out in the Order Form, provided Solutions4IT give the Customer 60 days’ written notice. If the Fees are increased any more than 10% per annum the Customer can terminate this Agreement from the date the new Fee is introduced by giving 30 days’ written notice.
9. Training/Software Services
1. Any Fees for training and IT support services are set out in the Order Form. Solutions4IT may vary the Fees at any time upon 30 days’ notice. Except where the increase is due to a variation in the scope of Service and work required, the Customer may cancel the provision of the affected Services by giving Solutions4IT 30 days’ written notice to expire on the date the new Fee applies, where such an increase is by any more than 10% in any one year
2. Solutions4IT may charge the Customer for any reasonable travelling and subsistence properly incurred in visiting the Customer Site or making any other journey and for other expenses properly incurred in the course of providing the Services. Depending on the scope of Services provided, personnel involved in the Services may not be based locally to the Customer.
3. Where specified, Solutions4IT will provide telephone assistance and/or at Solutions4IT’s discretion attendance at the Customer Site for reporting, diagnosing and correcting faults with the Supported Software, or otherwise provide the Services as indicated in the Order Form. The Customer acknowledge that Solutions4IT may not successfully diagnose or correct all faults or errors and does not guarantee any timescales for the correction of faults.
4. Where Solutions4IT provide Software upgrade versions for the Software, the Customer agree such upgrades, where available, will only be provided for such periods, as the manufacturer, in its sole discretion, considers commercially viable. Solutions4IT can give no warranty that any Software upgrade version will be of the same functionality, operating system compatibility or suitability for the Customer’s requirements.
10. Customer Data – Please see addendum attached
PART D – GENERAL TERMS
The following terms apply to all supplies under these Terms of Sale.
11. Solutions4IT’s obligations
1. Solutions4IT warrants that the Services will be performed with all reasonable skill and care and that it will be provided substantially in accordance with any terms outlined in the Order Form and these Terms of Sale.
2. The warranty in clause 11.1 shall not apply to the extent of any non-conformance that is caused by use of the Services contrary to Solutions4IT’s instructions.
3. If the Services do not conform with the warranty in clause 11.1, Solutions4IT will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the warranty in clause 11.1.
4. Notwithstanding the foregoing, Solutions4IT does not warrant that the Customer’s use of the Services will be uninterrupted or error-free.
5. This Agreement shall not prevent Solutions4IT from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services that are similar to those provided under this Agreement.
6. Unless Solutions4IT agrees otherwise in writing all delivery, Service provision and, where applicable, installation dates are estimated and Solutions4IT are not liable for any loss, costs, expense, liability or damages the Customer or someone else suffers because Solutions4IT did not meet these estimated dates.
12. Customer’s obligations
1. The Customer shall:
a. provide Solutions4IT with:
i. all necessary co-operation in relation to this Agreement; and
ii. all necessary access to such information as may be required by Solutions4IT,
in order to render the Services, including Customer Data, security access information and software interfaces, to the Customer’s other business applications;
b. take all reasonable precautions to safeguard the Customer’s business including without limitation, all software and data and to minimise potential loss or disruption, (including without limitation taking full backups of all the Customer’s software and data at all reasonable times, including prior to Solutions4IT conducting any work on the Customer’s systems, implementing audit controls, working methods and data security measures).
c. follow the applicable manufacturer’s instructions for the Equipment;
d. ensure that those authorised to use the Equipment are adequately trained in its use;
e. provide such personnel assistance as may be reasonably requested by Solutions4IT from time to time;
f. comply with all applicable laws and regulations with respect to its activities under this Agreement;
g. carry out all other Customer responsibilities set out in this Agreement or in the Order Form in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Solutions4IT may adjust any timetable or delivery schedule set out in this Agreement as reasonably necessary; and
h. insure the equipment to its full value and produce the insurance policy when called upon to do so by Solutions4IT.
13. Change control
1. If either party wishes to change the scope of the Services or requires additional Hardware (including Customer requests for additional services and/or Hardware), it shall submit details of the requested change to the other in writing.
2. If either party requests a change to the scope or execution of the Services, Solutions4IT shall, within a reasonable time, provide a written estimate to the Customer of:
a. the likely time required to implement the change;
b. any variations to the fees arising from the change;
c. the likely effect of the change on the Order Form; and
d. any other impact of the change on the terms of this Agreement.
3. If Solutions4IT requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
4. If the Customer wishes Solutions4IT to proceed with the change, Solutions4IT has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its Fees and any other relevant terms of this Agreement to take account of the change.
1. Solutions4IT shall invoice the Customer for the fees in the timescales and amounts outlined in the Order Form and this Agreement.
2. Under this Agreement the Customer must pay all Fees invoiced in full within 30 days of the invoice date.
3. Solutions4IT reserve the right to suspend the provision of any Services and/or withhold any Hardware yet to be delivered, until all outstanding invoices are paid in full, or if the account is in dispute for other services provided by Solutions4IT, until they are settled. Overdue invoices are liable for interest on the amount the Customer owes at 5% more than The Royal Bank of Scotland annual base rate. The Customer may not withhold any payment under a right of set off.
1. Subject to clause 15.3, Solutions4IT shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of or damage to goodwill; and/or, any indirect, special or consequential loss.
2. Subject to clause 15.1, Solutions4IT’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Agreement, shall be limited to 100% of the total charges paid under the Agreement.
3. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
4. Nothing in this clause 15 is intended to restrict Solutions4IT’s liability for death or personal injury, which is caused by Solutions4IT’s negligence or for fraud.
5. Subject to sub-clause 11.1 Solutions4IT, Solutions4IT’s employees or agents are liable for damage to property, which is caused by negligence.
6. Solutions4IT may from time to time deliver equipment, software or other items to the Customer, which the Customer obtains on lease. Solutions4IT may also facilitate the placing of orders between the Customer and third party suppliers and/or contractors. The Customer acknowledges that Solutions4IT is not the agent of any leasing company or other third party, and that Solutions4IT has liability in respect of such orders or for the acts or omissions of any third party, including any finance or leasing company.
7. Solutions4IT does not represent that the operation of any software will be uninterrupted or error free. For the avoidance of doubt Solutions4IT do not represent that any specific requirements the Customer has informed Solutions4IT of will continue to be met should the Customer’s Operating Environment or Customer-side Equipment alter after the date of initial installation.
8. The Customer agrees that except to the extent-prohibited by law the Customer will not otherwise hold Solutions4IT liable for any other claims, actions, costs, loss, damages or expenses whatsoever. In particular Solutions4IT will not be liable under any circumstances for any loss of business or profit by the Customer or anyone else.
16. Cancellation or Rejection
1. An order for the supply of Hardware and/or Services, once accepted in writing, is binding on the Customer and may not be cancelled unless specifically agreed to in writing by Solutions4IT. A charge of 25% of the retail price of the Hardware to be supplied, or 25% of the Services to be provided, may be charged as a cancellation fee.
2. Solutions4IT reserves the right to charge for any Services and/or Hardware provided up to the agreed cancellation date. If the performance figures obtained in any test specifically provided for in the contract are outside the limits specified therein, the Buyer will be entitled to reject the Hardware. Before the Customer is entitled to reject the equipment, Solutions4IT will be given reasonable time and opportunity to rectify any issues.
1. Without affecting any other right or remedy available to it, Solutions4IT may terminate the Agreement by giving the Customer not less than 1 month’s written notice.
2. Without affecting any other right or remedy available to it, the Customer may terminate the Agreement by giving Solutions4IT not less than:
a. 1 months’ written notice within the first year of the Agreement;
b. 2 months’ written notice within the second year of the Agreement; or
c. 3 months’ written notice after the second year of the Agreement Subject to such notice expiring no sooner than the end of the Initial Term or any anniversary of the Initial Term once the Initial Term has expired.
3. Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
a. the other party commits a material breach of its obligations under the Agreement and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
b. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
c. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
d. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
4. If the Customer gives Solutions4IT written notice that its wishes to terminate the Agreement, and such termination is not in accordance with clauses 17.2 or 17.3, the parties agree that, as compensation for: (a) loss of profit; and/or (b) or excessive depreciation of the Hardware (where such Hardware is supplied via a lease hire or rental arrangement), that the Customer pay to Solutions4IT a termination payment equal to the total of all payments which the Customer would have had to pay to Solutions4IT for the remaining term of the Agreement, less a discount of 25%.
5. The termination cost will be calculated as the higher of: (a) the average number of units produced over the duration of the Agreement (using the records supplied in accordance with clause 6.3 above); or (b) the minimum units (as specified in the Order Form) from the date notice of termination is received to the end of the contract year in question.
6. Upon termination of this Agreement the Customer must arrange, at its own cost, for the return of the Hardware that has been supplied subject to lease hire terms and will be liable for any damage to such Hardware where such damage is beyond that normally expected due to ordinary wear and tear in the course of use, taking into account the amount of use and the age of the Hardware in question.
1. The Customer shall not, for the duration of this Agreement, and for a period of six months following termination, directly or indirectly induce or attempt to induce any employee of Solutions4IT who has been engaged in the provision, receipt, review or management of the Services or otherwise in connection with this Agreement to leave the employment of Solutions4IT. In the event of a breach of this clause the Customer agrees that it shall pay to Solutions4IT a sum equalling 25% of the said employee’s first year’s gross salary, including benefits, bonuses and entitlements. The parties agree that this payment is a genuine pre-estimate of the loss that would be suffered by Solutions4IT as a result of the Customer’s breach of this clause and is a reasonable means of protecting Solutions4IT’s genuine business interests.
19. Force majeure
1. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks, either party not affected may terminate this Agreement by giving not less than 14 days’ written notice to the other party.
1. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
22. Entire agreement and amendment
1. This Agreement constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
2. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
3. Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
4. No alteration to or variation of this Agreement shall take effect unless and until the same is in writing and signed on behalf of each of the parties by a duly authorised representative.
1. The Customer shall not, without the prior written consent of Solutions4IT, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
2. Solutions4IT may at any time assign, transfer, charge, subcontract or deal in any other manner, with all or any of its rights or obligations under this Agreement without the consent of the Customer.
24. Governing law and jurisdiction
1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).