MODULE IT LTD TERMS AND CONDITIONS
“MODULE IT LTD” or “Module IT Ltd” “we” or “us”: Module IT Limited a company incorporated under the laws of England and Wales and having a registered office at Vantage Point Business Village, Mitcheldean, Gloucestershire, GL17 0DD.
“You” or “the Customer” the company, individual or other legal entity identified as the customer in the Order Confirmation.
“The Company”: any third party Product vendor as identified on your invoice.
“Integrated Material”: 3rd Party Products or Customer Factory Integration Software (CFI Software).
“Order Confirmation”: acknowledgement of Product ordered by you, sent by us.
“Price”: stated in Order Confirmation.
“Product”: as described in Order Confirmation which may include 3rd Party Products and Service Offerings.
“Service Offering”: as described in Order Confirmation following a quotation.
“Service Provider”: Module IT and/or its authorised service experts
“3rd Party Products”: Products (whether hardware, Software or services) stated in Order Confirmation and supplied or manufactured by The Company rather than by Module IT Ltd.
“Software”: computer operating systems or applications.
“Warranty”: any warranty provided by The Company in relation to a 3rd Party Product.
SCOPE OF THIS AGREEMENT
This Agreement applies to all elements of supply, installation and support detailed on the Order Confirmation sheet and schedules identified and attached to this Agreement.
Variations to this Agreement must be agreed by Module IT Ltd in writing. Any other terms, conditions or Purchase Orders are excluded. Placing your order means acceptance of this Agreement. This Agreement and its attached schedules form the entire Agreement.
COMMENCEMENT AND DURATION OF THIS AGREEMENT
- This agreement commences on the date set out on the Module IT Ltd Order Confirmation and continues:
- For period specified in the Order Confirmation,
- Thereafter, this agreement shall renew automatically for the same period as specified in the Order Confirmation, unless terminated by either party serving upon the other not less than 3 months notice in writing before the end of each specified period in the Order Confirmation; such notice to expire upon the day preceding the next anniversary of the commencement of this agreement
During this agreement
iii. If we agree to supply you with equipment to enable you to receive the services which we offer to you, this equipment will be installed, set-up and configured by us or one of our engineers and you agree not to alter the installation, set-up or configuration of the equipment unless at our specific direction. On termination or expiry of this agreement or the relevant service for any reason, you must arrange for safe return of the equipment at your own cost, or failing that, we will arrange for the collection of the equipment and charge you for our reasonable costs in doing so.
ORDERS / CONTRACT
- Your initial order is by a signed Order Confirmation form. Later variations and purchase orders may be submitted in writing, by electronic communication, telephone or fax but are only binding when accepted by our issue of a signed Order Confirmation form. You must check the Order Confirmation form upon receipt and notify us of any mistake in writing immediately or the details stated in the Order Confirmation will apply to this Agreement.
PRICE & PAYMENT TERMS
- Quotations are only valid in writing and during the period that they state. If unstated, the period is 14 days (7 days for 3rd Party Products). We reserve the right to change Products (including 3rd Party Products) at any time for products of at least equivalent functionality and performance.
Price excludes VAT or any other tax, shipment, insurance and installation. We reserve the right to increase the price to reflect changes in exchange rates, duties, insurance, freight and purchase costs (incl. for components & services). Payment may be requested before supply of any service or goods.
Late payment is dealt with in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and as subsequently amended. In addition, we reserve the right to suspend our service(s) to you absolutely. In such case, if there is an expense in relation to re-commencing any services to you, you agree to pay that, prior to such recommencement.
Prices for maintenance and support services provided by us under this agreement are subject to annual increase. Not less than 30 days prior to the end of a 12 month period (as referred to in clause 1(i)), we shall notify you of the prices for the next 12 month period. We reserve the right to increase prices by 3% or in proportion to the increase in all items RPI in the previous 12 months, whichever is the greater.
GOODS & SERVICES DELIVERY, TITLE, RISK, ACCEPTANCE & WARRANTY
- We shall provide you with the goods and services itemised on the Order Confirmation, at the price shown on the signed Quotation at the prices contained therein (and subject to clause 3)
4.1. We shall use our best endeavours to comply with the timescale set out in any attached Schedule but you agree that time shall not be of the essence in relation to such response times and that we shall have no liability whatsoever for any failure to adhere to the proposed response times in such Schedule for any matters outside of our control. Specifically, we shall not be liable for any delay or failure to provide any services or Products to the extent that such delay or failure is caused by any breach of this agreement by you, or by acts or omissions of you, your personnel, or your contractors or other service providers.
4.2. As part of our contractual service you agree we may access your computers remotely, and implement measures with the intention of either avoiding foreseeable problems and or improving the existing service or operation of your computers.
You agree to nominate a person (your "primary contact"), identified on the Order Confirmation form, who will be our primary point of contact in relation to all aspects of the service which we provide to you. If the primary contact is absent from your office he/she should if practical arrange a substitute. You agree that before seeking our assistance in accordance with the terms of this contract you will use your reasonable endeavours to correctly identify the nature of any particular problem. You agree not to initiate or to maintain unnecessary instructions to us. The primary contact shall be available during normal working hours to assist us in implementing our services to you, and shall provide us with all reasonable courtesy, information, cooperation, facilities and access to enable us to perform our duties, failing which we shall be entitled to suspend our service or assistance.
Module IT Ltd shall share password information with the primary contact. If the primary contact wishes us to share password information with any other party the primary contact must so instruct us, accompanying that instruction by the active password.
We contract with you to provide a service to you upon a timely basis. Our aim is to enable your IT systems to continue to function. You contract with us to use your reasonable endeavours:
- To give us the information which we require
- To keep us up to date in relation to your systems and software
- To facilitate the work which we have to carry out
In the event that we have to do work which we consider has been unreasonably requested or initiated by you, we reserve the right to charge for such unnecessary work at the hourly rate of £50.00 + VAT per hour together with the cost of any materials which have to be purchased.
4.3. Within 3 months of the commencement of this agreement we shall audit
and itemise your software and hardware and shall append that information to the Schedule of equipment. The price set for this Agreement is set by reference to the number of computers which you have, and your main software programmes. In the event of any material change to these price factors, we will increase our charges to you in accordance with our scale of charges from time to time but not decrease on a reduction in that number. This will be confirmed by us in writing.
4.4. The delivery period in the Order Confirmation is approximate. Delivery by
instalments may be made. The place of delivery is stated in the Order Confirmation. If you refuse delivery without our agreement, you must pay our expenses or loss resulting from that refusal, including storage costs, until you accept delivery.
Title to all goods and property in the goods shall remain vested in us (notwithstanding the delivery of possession and the passing of the risk in the goods or any part of them) until payment in full of the price of all the goods the subject of this contract to us and other money due from you to us on any other account or contract.
The legal property in the goods shall remain with us until payment in full is made by you and we reserve the right to dispose of the goods until payment in full for all the goods has been made by you to us in accordance with the terms of this contract.
You shall keep and store the goods separately from any other goods in your possession so that the goods can be easily identifiable.
You are a bailee of the goods. You may sell the goods to your customer or by way of bona-fide sale at full market value and in effecting such sale you are our agent and have our authority to sell the goods for our account. In the case of the sale of the goods or any part of them by you, you shall stand in a fiduciary relationship to us in respect of the proceeds of such sale and we shall have the right to trace the proceeds of sale (in accordance with the principles of Re Hallett’s Estate). You shall account separately for all the proceeds of sale of the goods and undertake not to authorise any inter-mixing of such proceeds of sale in your general accounts
Until payment in full we may (without prejudice to any of our other rights) recover or resell the goods or any part of them and may enter upon your premises or those of any other party and with or without vehicles for that purpose. You agree to pay all costs hereby incurred.
When you receive Product you must inspect it promptly and also within any statutory reasonable period for inspection or rejection. After this period, you will have accepted Product. If we agree at our discretion to accept the return of Product, it must be in its original condition with packaging, a return note and proof of purchase: the return costs and restocking fee may also be payable by you.
We purchase on your behalf and shall deliver any manufacturer’s and or vendors warranties to you and or implement them in so far as is possible upon your behalf.
We do not give warranty or guarantee protection for:
- damage caused by any unauthorised 3rd party or yourself; by incorrect installation, use, modifications or repair
- damage caused by any other party or other external force;
iii. fitness for any particular purpose;
- 3rd Party Products (whether Software, hardware or services) or Software and Integration Material specified by you. You will receive the Warranty for these products directly from their manufacturer or licensor;
- any instruction given by you and correctly performed by us our agents or contractors.
EXCLUSION FROM SERVICE
- Items excluded from Service unless stated in an Order Confirmation
The following are excluded from Service: rectifying the improper use operation or neglect of the equipment listed in the appropriate Schedule , or any similar hardware or software which has been installed upon it; modification or merger of any software; use of the equipment listed in the Schedule at an address which is not registered with us; failure by you to implement our solutions to faults, or our recommendations; the breach by you of your obligations under any maintenance agreement in respect of any hardware which you have; the use by you of the hardware/software for a purpose different to that for which it was designed or intended; the use of the hardware/software by persons who are not adequately trained; changes to configuration, relocation, consumables, diskettes, unnecessary work (in our assessment), electrical environment, transfer of data or software, viruses. We shall not be held responsible for service or repair of any 3rd Party Products (including any failure or defects in them) but will use our reasonable endeavours to diagnose and avoid/reduce equipment failure. In the event of a failure of any hardware or other 3rd Party Products these may if the relevant Warranty pays for our services at our discretion be repaired by us under Warranty or if it is more appropriate by the manufacturer/supplier; alternatively by us at your expense at the full hourly rate specified in the quotation (or if not so specified, then our normal hourly rate at that time). Parts not critical to product function (e.g. hinges, doors, cosmetic features, frames) may not be serviced within specified service response times.
- At our discretion and if you so request, we may provide the service notwithstanding that your requirement results from the circumstances set out in clause 5 above provided you agree in writing, to pay our additional charges by way of an additional signed Order Confirmation.
- Additional charges are at the full hourly rate specified in the quotation or in an attached schedule (or, if not specified, our standard hourly rates) and we reserve the right to request payment of them and of any equipment costs, as best estimated, in advance.
- We warrant that we provide our service to you with the reasonable care and skill of a competent IT support company.
- Where we supply a 3rd Party Product subject to any specific additional terms and conditions, our supply of that 3rd Party Product to you shall be subject to those terms and conditions (provided that we have notified you of them).
- Nothing in this agreement limits or excludes our liability for death or personal injury caused by our negligence or deliberate misconduct or fraud. Our maximum aggregate liability to you under or in connection with this agreement is limited to the lesser of £50,000 or the aggregate of the previous 12 months charges paid to us by you. You agree that this is a reasonable limitation.
- We do not accept liability for (1) acts of 3rd parties including ISP service providers (2) indirect or consequential loss, (3) loss of business profits, salary, revenue, savings, (4) damage remedied by us within reasonable time, (5) loss avoidable by you through reasonable conduct, including backing up all data and following our reasonable advice generally, (6) failure of the electricity supply, the telephony system or other failures by utility companies (7) failure of or defects in 3rd Party Products (save that we will use our reasonable endeavours to diagnose and avoid / reduce hardware failure) Where we supply software to you this is bench tested at our premises. We check it to industry standards. We do not make a mirror of your server or your network and cannot state absolutely that such software is free from fault but the software is determined as free of identifiable fault as can be verified by testing and use upon a variety of platforms. You agree that these are reasonable limitations.
- We indemnify you from all costs and liabilities from any claim that use of our services infringes any 3rd party intellectual property claims. We may recall and exchange or modify product or refund you, minus depreciation in this event. You agree to indemnify us against any intellectual property rights claims in respect of Product specified or owned by you and/or integrated into Product. We and the Company retain all our and their respective intellectual property rights in Product. You must notify us immediately of any infringing or unauthorised use of any Product of which you become aware.
- Software supplied to you is supplied subject to the standard terms licence and warranty of the relevant Software licensor. You must comply with the terms of each such licence.
- You acknowledge that the Product may include technology and Software which is subject to US and EU export control laws and laws of the country where it is delivered or used; you must abide by all these laws. Product may not be sold, leased or transferred to restricted end users or countries or for a user involved in weapons of mass destruction or genocide. You acknowledge that US and EU restrictions vary regularly and depending on Product, therefore you must refer to the current US and EU regulations.
- We are not liable for delays or failures in performance (including delivery or service) caused by circumstances beyond our reasonable control and we will be entitled to a time extension for performance; examples – which are not exclusive - include strikes, supplier / transport / production problems, exchange fluctuations, governmental or regulatory action, acts of terrorism and natural disasters. If any force majeure lasts more than 2 months this Agreement may be terminated by either party without compensation.
- Each party must treat all information received from the other marked “confidential” or reasonably obvious to be confidential as it would treat its own confidential information.
- We may terminate this Agreement and our service to you with written notice if you: 1) fail to pay on time for any product or services and or within 14 days of written notice; 2) breach of (or if we upon reasonable grounds suspect you have breached) export control laws. Either party may terminate this Agreement and our service on written notice if the other: 1) commits a material or persistent breach of this Agreement and fails to remedy his within 30 days of written notice from the other, or 2) becomes insolvent or is unable to pay debts as they fall due. In the event of termination by us on the ground of your breach of this agreement whether for non-payment or otherwise you agree to pay us as a debt the sums payable by you calculated as if you had served notice under clause 1 (ii). On termination we have your irrevocable authority to enter your premises with or without vehicles to collect our property and remove our software from your computers and network. This may be done by us between office working hours. The time which we spend is chargeable at the then current hourly rate for our services plus the costs of any vehicles.
- Any notice of termination or complaint given under this Agreement shall be in writing and shall be delivered by hand, or sent by pre-paid first class post or recorded delivery post to our registered office or to such other address we notify to you. A correctly addressed notice sent by pre-paid first class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
3RD PARTY PRODUCTS
- You are responsible for:
- any customer factory Integration specifications and instructions given by you;
- all Integrated Material, its performance, licences, authorisations and any unused Integrated Material
iii. the integrity and if appropriate removal of products we have not supplied during service, and maintaining confidentiality of all data in such Products.
- Your data will be held and / or transferred in strict accordance with the applicable data protection laws and our data protection registration and you consent to this. You may instruct us not to use your data for direct marketing purposes.
- This agreement does not affect your statutory rights as a consumer.
- This Agreement is subject to the laws of England and Wales and the exclusive jurisdiction of the English courts. The Vienna Convention on Contracts for the International Sale of Goods is excluded.
- If any part of the Agreement is found to be invalid or unenforceable by a Court the rest is unaffected. We may subcontract our obligations to a competent person. Otherwise neither party may assign or transfer any obligations or rights. All notices must be in writing (by hand, e-mail, fax or 1st class post (deemed delivered 48 hours after posting) and sent to a legal officer of either party.
- The failure by us to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement