| 1. |
Definitions |
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| 1.1 |
In these Terms, the following words or phrases shall
have the meanings set opposite them: |
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| Agreement |
the agreement for the supply of the Services by
Condie IT to the Purchaser, whether set out in writing
or otherwise; |
| Charges |
the fees, costs and others payable by the Purchaser
to Condie IT for the Services set out in the Agreement
, and any additional fees, costs and others payable
pursuant to the Agreement including clauses 2.2
and 2.7 of these Terms; |
| Condie IT |
Condie IT Solutions Limited; |
| Expenses |
any disbursements and other reasonable expenses
incurred by Condie IT in the provisions of the Services; |
| Goods |
all tangible goods and equipment including Hardware
and Software to be supplied under the Agreement; |
| Hardware |
the hardware (if any) to be supplied under the
Agreement; |
| Purchaser |
the other party or parties to the Agreement; |
| Services |
the services (other than Software Support (if
any)) to be performed by Condie IT for the Purchaser
to be supplied under the Agreement (including the
provision (if any) of any hardware (the "Hardware")
or software (the "Software")); |
| Software |
the software programs to be supplied under the
Agreement; |
| Software Licence |
the licence granted to the Purchaser by or on
behalf of the Software Licensor; |
| Software Licensor |
the developer and owner of the Software; |
| Software Support |
the software support (if any) to be provided by
Condie IT for the Purchaser expressly agreed to
be supplied under the Agreement; |
| Terms |
these Terms and Conditions of Business; |
| Working Hours |
between the hours of 9am and 5pm
Monday to Friday but excluding any Fife, Scottish
or National public or bank holidays, and the period
between Christmas and New Year. |
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| 2. |
Services, Software Support and Property |
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Services |
| 2.1 |
Unless Condie IT and the Purchaser have entered into
a formal written agreement set out in one of Condie IT's
"Confirmation", the provision of the Services
will be regulated by these Terms. If any additional services
are provided by Condie IT, these Terms will regulate that
provision, and the Charges will be calculated in accordance
with the charges of Condie IT prevailing at that time. |
| 2.2 |
Condie IT will provide the Services to the Purchaser.
Any addition to, reduction in or variation of the Services
will, unless otherwise agreed in writing, be subject to
further Charges. |
| 2.3 |
Unless otherwise agreed in writing between the parties
the Services will be provided during the Working Hours. |
| 2.4 |
Condie IT may, in the course of providing the Services,
advise the Purchaser that additional Software should be
installed onto the Purchaser's computer network. For the
avoidance of doubt, if the Purchaser decides not to install
any such Software, Condie IT will not liable to the Purchaser
for any loss or damage suffered by the Purchaser as a
result of the Software not being installed. |
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Software Support |
| 2.5 |
If expressly expressly agreed to be supplied under
the Agreement, Condie IT will provide the Purchaser with
the Software Support. |
| 2.6 |
Software Support does not include the diagnosis and
rectification of any fault, or otherwise providing any
Services, resulting from: |
| 2.6.1 |
2.6.2
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2.6.3
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2.6.4
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| 2.6.5 |
| 2.6.6 |
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the improper use, operation or neglect of the
Software; |
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any repair, adjustment, alteration or modification
of the Software or the Hardware by any person other
than Condie IT without Condie IT's prior written
consent; |
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the use of the Software or Hardware other than
in accordance with the directions of the manufacturer
or the recommendations of Condie IT; |
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failure by the Purchaser to implement existing
Condie IT recommendations in respect of faults,
underperformance, or solutions; |
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failure by the Purchaser to back-up its data;
or |
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any breach by the Purchaser of any of its obligations
under any maintenance agreement in respect of the
Hardware. |
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| 2.7 |
Condie IT will upon request by the Purchaser provide
Software Support notwithstanding that the fault or underperformance
results from any of the circumstances described in clause
2.6. Condie IT will in such circumstances be entitled
to make additional Charges for such Software Support. |
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Property |
| 2.8 |
Risk in any Goods provided by or on behalf of Condie
IT shall pass to the Purchaser on delivery. |
| 2.9 |
Ownership of any Goods provided by or on behalf of Condie
IT shall not pass to the Purchaser until the Charges in
respect of the Goods has been paid in full by the Purchaser,
and the Purchaser shall hold such Goods in trust for Condie
IT until such payment in full has been received. |
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Manufacturers' Warranties |
| 2.10 |
In relation to any Goods provided under the Agreement,
Condie IT will, so far as Condie IT is legally able to
do so, transfer to the Purchaser the benefit of any manufacturers'
or suppliers' express or implied warranties or guarantees
provided to Condie IT whether in relation to the fitness
for purpose or otherwise. |
| 2.11 |
Without prejudice to any other exclusion or limitation
of liability in these Terms including those in clause
9, Condie IT will not be liable for any loss or damage
suffered by the Purchaser where the Purchaser could have
recovered that loss or damage under any manufacturers'
or suppliers' express or implied warranties or guarantees. |
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| 3. |
Data Back-up |
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While providing the Services (including the Software
Support (if any)) Condie IT may access (including remotely)
the Purchaser's computer network and may impair the performance
of that network, or inadvertently damage or lose any data
stored upon it. To minimise any such damage or loss, the
Purchaser undertakes that it will back-up all data stored
on its computer network at least once every 24 hours (and
check each 24 hours that the back-up has been successfully
completed). |
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| 4. |
Existing Hardware and Software Problems |
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The Purchaser warrants and confirms that at the time
of entering into the Agreement all existing hardware and
software problems have been notified to Condie IT in writing. |
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| 5. |
Charges and Payment |
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| 5.1 |
The Purchaser will pay the Charges to Condie IT. All
Charges are exclusive of any Value Added Tax (if applicable),
for which the Purchaser will be additionally liable at
the applicable rate from time to time. |
| 5.2 |
The Charges are reviewed annually each April. The Purchaser
will be informed in advance of any increase to the Charges
being implemented. |
| 5.3 |
Condie IT will invoice the Purchaser for all Goods provided
under the Agreement (the "Goods Invoice"). Payment
of any Goods Invoice should be made prior to or on delivery
of the Goods that it relates to. For the avoidance of
any doubt Condie IT will not be obliged to install or
modify any Goods provided under the Agreement until those
Goods have been paid for. |
| 5.4 |
Condie IT will invoice the Purchaser for the Charges
and any Expenses on or before the end of each month in
which Condie IT have provided the Services or incurred
Expenses. |
| 5.5 |
Payment of all invoices (other than any Goods invoice)
issued under the Agreement should be made within thirty
days of the date of the invoice. |
| 5.6 |
If the Purchaser (acting in good faith) has a query
in respect of any invoice, they shall be bound to submit
such query to Condie IT in writing within ten working
days of the date of the invoice, failing which the invoice
will be deemed to have been agreed. To the extent that
any invoice is so queried, the parties will endeavour
to resolve the query in good faith and, in any event,
before the end of the month in which the invoice is submitted.
Any balance of the invoice which is not the subject of
a any query shall be duly paid in accordance with clause
5.5. |
| 5.7 |
The Charges are calculated on the assumption that payment
is made in accordance with these Terms. If payment is
not made on time, or in full, Condie IT may: |
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charge the Purchaser an administration fee and
interest on the outstanding balance, from the thirtieth
day after the date of invoice until payment, in
accordance with the Late Payment of Commercial Debts
(Interest) Act 1998; and |
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if a debt collection agency is used to recover
the payment due, charge the Purchaser any additional
collection fees, administration fees and interest
incurred. |
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| 5.8 |
In addition, if any invoice is not settled on time
by the Purchaser, the directors, partners or members of
the Purchaser will each be personally liable (what is
known as joint and several liability) for the outstanding
Charges, including any collection fees, administration
fee and interest. |
| 5.9 |
Except pursuant to clause 5.6, the Purchaser will not
be entitled to set-off, compensate, retain, withhold,
abate or otherwise retain performance of its obligations
(including but not limited to payment) for any reason
whatsoever. |
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| 6. |
Expenses |
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The Purchaser will reimburse Condie IT for any Expenses
incurred. For the avoidance of any doubt any travel or
subsistence costs incurred by Condie IT in providing the
Services will be treated as Expenses. |
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| 7. |
Intellectual Property Rights (including copyright) |
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| 7.1 |
The Software is licensed to the Purchaser strictly
in terms of the relevant exhaustive Software Licence by
the Software Licensor. For the avoidance of any doubt,
no such licence will be granted (or deemed to be granted)
until the Charges have been paid in full. |
| 7.2 |
The Software, including any manuals or other documentation
produced by the Software Licensor (the "Software
Material"), may contain confidential and/or proprietary
information of the Software Licensor. All copyright, trade
marks and other intellectual property rights in the Software
Material is and will remain the exclusive property of
the Software Licensor and may only be used under the terms
of the relevant Software Licence. All documentation, information
and other materials (including all training manuals) produced
by Condie IT (the "Condie IT Materials") may
contain confidential and/or proprietary information of
Condie IT. All copyright, trade marks and other intellectual
property rights in the Condie IT Material is and will
remain the exclusive property of Condie IT and may only
be used in accordance with the Agreement. |
| 7.3 |
Notwithstanding the generality of the foregoing, and
in relation to both the Software Materials and the Condie
IT Materials (the "Materials"), the Purchaser
will not: |
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reverse compile or adapt all or any part of the
Materials; |
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assign, transfer, sell, lease, license, rent,
charge or otherwise use, deal in or encumber the
Materials or use thereof either for itself or on
behalf of any third party or make available the
Materials to any third party; or |
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remove or alter any copyright or other proprietary
notice on any of the Materials; or |
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reproduce or copy the Materials. |
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| 8. |
Assignation and Sub-licensing |
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| 8.1 |
The Purchaser may not assign, sub-license or otherwise
transfer its rights and obligations under the Agreement
without the prior written consent of Condie IT. |
| 8.2 |
Any assignation, sub-licence or other transfer of rights
and obligations under any Software Licence will be governed
by the relevant Software Licence. |
| 8.3 |
Condie IT may assign its rights and obligations under
the Agreement provided notice of assignation is given
to the Purchaser. |
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| 9. |
Exclusion and Limitation of Liability |
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| 9.1 |
Nothing contained in the Agreement limits Condie IT's
liability for negligence resulting in death or personal
injury. |
| 9.2 |
Condie IT will not be liable to the Purchaser or be
deemed to be in breach of the Agreement for any loss,
damage, costs, expenses or other claims for compensation
arising from any information supplied, or instruction
given, by the Purchaser which is incomplete, incorrect,
inaccurate, illegible, out of sequence or in the wrong
form, or arising from its late arrival or non?arrival,
or arising from any other fault of the Purchaser. |
| 9.3 |
Condie IT will not be liable to the Purchaser or be
deemed to be in breach of the Agreement by reason of any
delay in performing, or any failure to perform, any of
Condie IT's obligations, if the delay or failure was due
to any cause beyond Condie IT's reasonable control. |
| 9.4 |
Condie IT will not be liable to the Purchaser or be
deemed to be in breach of the Agreement if, other than
as a result of any malicious or reckless act of Condie
IT, any loss or damage is caused to any data of the Purchasers
or any third party. |
| 9.5 |
In respect of any: |
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representation (unless fraudulent), |
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implied warranty, condition or other term, |
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duty at common law (including but not limited
to liability for negligence), or |
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duty under the Agreement, |
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Condie IT will not be responsible for any loss of profit;
legal and management fees or expenses; or, indirect, special
or consequential loss suffered by the Purchaser or any
agent, customer or supplier of the Purchaser. |
| 9.6 |
Without limiting clause 9.1 in any way, Condie IT's
entire and remaining liability under or in connection
with any breach of the Agreement, and other than as actually
excluded by clauses 9.2, 9.3, 9.4 or 9.5, will not exceed
the amount of the Charges actually paid by the Purchaser
to Condie IT during the previous twelve months. |
| 9.7 |
If any provision of this clause 9 is held by any court
or other competent authority to be invalid or unenforceable
in whole or in part, such provision shall be divisible
from the Agreement and shall be deemed to be deleted,
provided always that if such deletion substantially affects
or alters the commercial basis of the Agreement, the parties
agree to amend and modify the provisions of the Agreement
so as to achieve so far as possible the same economic
effect without rendering the Agreement so amended or modified
illegal, invalid or unenforceable. The validity of the
other provisions of the Agreement and the remainder of
the provision in question shall not be affected. |
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| 10. |
Termination and Effect of Termination |
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| 10.1 |
Condie IT may terminate the Agreement immediately by
written notice if the Purchaser: |
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is in breach of the Agreement or any other agreement
with Condie IT; or |
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is apparently insolvent or makes any composition
or arrangement with its creditors or has an application
made for the appointment of an administrator or
has a petition for a winding up order presented
or has a resolution for voluntary winding up passed
or has a receiver of its business appointed or has
possession taken by or on behalf of any creditor
of any property that is subject to a charge or has
diligence executed against it whether on the dependence
of an action or in the execution of any decree. |
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| 11. |
Indemnity |
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The Purchaser will on demand and regardless of whether
or not the Agreement has been terminated under clause
10.1 indemnify Condie IT on a full indemnity basis against
all liabilities, loss, damages, costs and expenses (including
legal and management fees/expenses; any loss of profit
and all indirect, special or consequential losses) awarded
against or incurred or paid by or suffered by Condie IT
as a direct or indirect result of any breach by the Purchaser
of any provisions (express or implied) of the Agreement. |
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| 12. |
Entire Agreement |
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The Agreement constitutes the entire agreement between
the parties in respect of its subject matter and supersedes
any previous agreement or understanding in respect of
its subject matter and may not be varied except in writing
between the parties. All other terms and conditions express
or implied by statute or otherwise, are excluded to the
fullest extent permitted by law, and neither party is
relying on any representation other than expressly set
out in writing in the Agreement. |
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| 13. |
Data Protection |
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| 13.1 |
Condie IT may record information about the Purchaser,
its officers and its employees. Condie IT may use this
information to assist it in providing the Services and
other information which Condie IT think may be of interest.
Please notify Condie IT if doing so would be unwelcome. |
| 13.2 |
If in the course of providing the Services Condie IT
processes data, as defined in the Data Protection Act
1988, Condie IT will comply with its obligations under
this Act. |
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| 14. |
Confidentiality |
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Neither Party will disclose or use, or cause to be disclosed
or used, at any time during or subsequent to the Agreement,
otherwise than as permitted under the Agreement, any secret
or confidential information of the other Party or any
other non?public information relating to the business,
financial or other affairs of the other Party acquired
under the Agreement. |
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| 15. |
Law |
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Scots law will apply to the Agreement, and the parties
agree to submit to the non-exclusive jurisdiction of the
Scottish courts. |
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