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A. General
B. Installation
C. Website Design & Services
D. Hardware Onsite Warranty
A. GENERAL
1. Outline
This content defines the standard terms and conditions of supply by Intelligent Retail to the Customer.
2. Definitions
“Acceptance Tests” The activities carried out by Intelligent Retail in accordance with Intelligent Retail´s standard procedures to demonstrate the correct commissioning and functionality of the Works defined in the SOW.
“Applications” Any Software used to provide access to facilities for users of Connect. Cabling Infrastructure. Any cabling and associated components connecting workstations to the Servers. UTP network cabling and switches
“Installation Engineer” The Intelligent Retail or Partners installation engineer(s) who will carry out the Works identified in the SOW.
“Customer” The person who is responsible for initiating the request for work from Intelligent Retail. Network Manager
“Goods” The Goods (including any installation of the Goods) which Intelligent Retail is to supply in accordance with these Conditions.
“Hardware” Any electronic equipment required such as Servers, Workstations, switches, printers, scanners, etc. Intelligent Retail AX Server
“Server” Any central computer system used for the storage or user data and/or Applications. Software. Any computer disk or CD with data on it which is used to configure Servers, Workstations or Hardware or the source of Applications. Microsoft® Windows® Server 2003
“SoW” The main document defining the Works to be carried out by Intelligent Retail on behalf of the Customer.
“Third Party” A company other than Intelligent Retail who are responsible for the provision of Hardware, Software or cabling. BT
“URL” Universal Resource Locator (website address) www.intelligentretail.co.uk
Works The agreed set of activities to be carried out for the Customer by Intelligent Retail.
3. Intelligent Retail Personnel
3.1. The Intelligent Retail project co-ordinator, or project manager, will be responsible for co-ordinating all activities relating to the Works to be carried out by Intelligent Retail.
4. Title
4.1. Notwithstanding delivery, installation and acceptance, title to the equipment shall not pass to the Customer but shall be retained by Intelligent Retail until full payment for the Products has been received by Intelligent Retail from the Customer.
4.2. Until such time as title in the Hardware has passed to the Customer, Intelligent Retail:
i. shall have absolute authority to retake, sell or otherwise deal with or dispose of any or part of the Hardware; and
ii. for the purpose specified in (i) above, Intelligent Retail or any of its agents or authorised representatives shall with reasonable cause be irrevocably entitled at any time and without notice to enter upon any premises in which the Hardware or any part thereof is installed, stored or kept, or is reasonably believed so to be; and
iii. shall be entitled to seek a Court injunction to prevent the Customer from selling, transferring or otherwise disposing of the Hardware.
5. Hardware Warranty (General)
See also On-Site Hardware Warranty.
5.1. Period
Intelligent Retail partner with a range of hardware suppliers. Unless otherwise stated PC´s, notebooks and till systems come with 1 year return to manufacturer warranty. If the customer notifies Intelligent Retail within fourteen (14) days of the delivery date that the item has been found faulty upon receipt then, depending upon the nature of the fault, Intelligent Retail may classify that item as Dead on Arrival (DoA) and replace the item with a new product.
5.2. Returns
It is the customer´s obligation to package and return items to the manufacturer and cover delivery costs.
5.3. No fault found
In the event of any claim presented under warranty being found on investigation by Intelligent Retail either to be outside the scope or duration of this warranty or the fault not being confirmed, then the cost of such investigation and repair shall be borne by the Customer.
5.4. Liability
Intelligent Retail shall not be liable at any time for damage or defects in the Hardware or parts caused by:
i. improper use or installation; or
ii. use of the Hardware outside the specifications detailed in the documentation relating to the Hardware; or
iii. outside the specific application of the Hardware; or
iv. where Hardware has been repaired or modified by persons not authorised by Intelligent Retail.
6. Software Warranty
In the case of Software produced by Intelligent Retail ("Intelligent Retail Software") Intelligent Retail Software is warranted to conform substantially to its published functional specifications for a period of ninety (90) days from the date of installation. Intelligent Retail will during the said period, at its own expense, correct any such non-conforming Software provided that the Customer has notified Intelligent Retail and upon inspection Intelligent Retail has found the Software to be non-conforming. The Customer´s sole and exclusive remedy under this warranty will be limited to such correction.
6.1. Conditions
This warranty is subject to the following conditions:
i. Any modification of the Software by any persons not authorised by Intelligent Retail shall void this warranty.
ii. Damage resulting from or aggravated by negligence or misuse is excluded.
iii. This warranty is subject to the Customer following the procedures (if any) specified by Intelligent Retail from time to time for fault recording.
iv. The Customer reporting any faults in the Software within seven (7) days of the fault becoming apparent and co-operating with Intelligent Retail in carrying out such diagnostic and test routines as Intelligent Retail may require in accordance with Intelligent Retail´s instructions.
v. The Customer returning to Intelligent Retail, if so required by Intelligent Retail, at its own expense the Software suitably packed.
6.2. Third Party Software.
In the case of non Intelligent Retail software ("Non Intelligent Retail Software"), Intelligent Retail will use reasonable endeavours at its own expense to procure that the Customer will have the benefit of any warranty given by a Third Party in respect of non Intelligent Retail software delivered subject to the Customer complying with the conditions of such warranties.
7. Cancellation / Returns
7.1 Goods are not sold on a trial basis. Where a Customer is not satisfied with Goods and / or does not want them, the Goods can only be returned to Intelligent Retail if fully re-saleable and subject to a restocking charge of 15% of the purchase price of the Goods or £20, whichever is greater. In the event of such returns, the Customer acknowledges that it shall be liable for all reasonable costs incurred by Intelligent Retail in relation to carriage, postage, and packaging and Intelligent Retail shall invoice the Customer for any costs in question incurred. Intelligent Retail shall not refund monies for Goods which are bought in error or are not resaleable.
7.2 A Returns authorisation number must be obtained before any Goods can be returned to Intelligent Retail, which number may be obtained by the Customer from Intelligent Retail´s customer service department. All repairs, replacements or refunds will be processed following receipt and inspection by our Returns department The Goods must also be packaged in all their original packaging so as to ensure safe transit and ease of identification and be returned in their entirety including all disks, manuals and cables. The manufacturer´s packaging must not be damaged or defaced. Intelligent Retail shall refuse Goods returned without a Returns authorisation number
7.3 The return of faulty Goods is subject strictly to individual manufacturers Dead On Arrival policies (DOA). (Individual manufacturers DOA policies may be obtained by the Customer by contacting Intelligent Retail´s customer service department.) Where a Customer notifies Intelligent Retail of a defect in the Goods within the time provided for in the applicable manufacturers DOA policy, which defect is subsequently verified by Intelligent Retail´s technical inspectors, Intelligent Retail will replace the Goods or refund the monies paid by the Customer for the Goods.
7.4 The Goods will be tested upon receipt. If no fault is found, the Goods will be returned to the Customer. If a fault is found and the applicable manufacturer´s DOA period is exceeded, then the Goods will be repaired under the terms of the manufacturer´s warranty.
7.5 In the case where it is established that Goods are faulty or defective in line with the individual manufacturer´s warranty, most warranty repairs will be carried out on a return-to-manufacturer basis. All parts and labour charges will be waived but the Customer is responsible for ensuring that the Goods are returned to Intelligent Retail in their original packaging ,or if this is not available, in a stout carton with high density foam providing at least 150mm clearance surrounding the entire product so as to ensure safe transit and ease of identification. In some instances the manufacturer´s warranty requires the Customer to contact the repair agent directly. If this is the case, the Customer will be so informed by the Intelligent Retail´s customer service department.
7.6 Under no circumstances will Intelligent Retail accept the return of an opened software package unless it is faulty. By breaking the seal, the Customer accepts the licence between the Customer and the software manufacturer.
7.7 The Customer acknowledges that in all cases all Goods shall be returned to Intelligent Retail using only a carrier approved by Intelligent Retail and in cases where the Customer uses an unapproved carrier the Customer shall be liable for all costs losses damages or other charges incurred by Intelligent Retail in relation to the use by the Customer of the unapproved carrier.
7.8 Risk in any Goods that the Customer is returning to Intelligent Retail shall remain with the Customer until the Goods have been delivered to Intelligent Retail´s premises and accepted by Intelligent Retail.
8. Price
Catalogues, price lists and other advertising literature or material as used by Intelligent Retail are intended only as an indication as to price and range of goods offered and no prices, descriptions or other particulars shall be binding on Intelligent Retail.
The pricing in any written quotation provided by Intelligent Retail is fixed for a period of thirty days from date of quote. All prices are exclusive of VAT (and any similar sales tax) which will be charged as additional items on Intelligent Retail´s invoice. Following the expiry of this thirty day period any quoted price must be verified with Intelligent Retail.
9. Functionality and Service Levels
9.1. The customer agrees that the system is purchased on the basis that functions exist as per those that have been visually demonstrated or confirmed in writing. Intelligent Retail can make no promises that any functionality is built-in to the system if it has been verbally implied or stated by a representative. Neither does Intelligent Retail commit to copy functions from any other system unless specifically stated in writing. The reason is because it can be hard to clearly understand what is meant when talking about functionality of an IT system. The only functionality we can commit to delivering now or in the future is; a) existing functionality that has been visually demonstrated, or b) functionality that has been confirmed in writing as standard functionality, or c) new functionality confirmed in writing as agreed by a Director. If you have any essential requirements for functionality please ensure it is confirmed by a visual demonstration or in writing before you order.
9.2. Intelligent Retail typically quote standard support and hosting services that suit the majority of our customers. If you would like information on the enhanced levels of support and hosting please ask for details before or after you place your order.
10. Payment
10.1. Booking installation and training dates
To book an installation and training date Intelligent Retail require a deposit of at 10% or greater of the total value of the cost of goods and services as agreed as per the payment schedule. This is to hold the Customer´s specific dates in the engineer´s diary. If payment is by lease, confirmation of lease approval must have been received before the installation date can be booked.
Rearrangement and Cancellation. Once an installation and training date is agreed Intelligent Retail will commit resources to it. Therefore we prefer that dates are not changed. We do understand in certain exceptional circumstances that changes may need to occur. In these situations we regrettably have to pass on just some of the costs undertaken, these can be for example; project management, pre-commissioning, restocking fees (suppliers and our own), carriage, web development, web consultancy, hotel costs and preliminary design works.
Rearrangement is deemed to be when an installation or training date is rescheduled. Where 2-4 weeks notice of rearrangement is provided there is a charge of £140 to cover costs incurred by Intelligent Retail and our partners. Where 2 weeks or less notice is given, a charge of £450 will apply. The Customer agrees that such charge amounts to a genuine pre-estimate of the losses suffered by Intelligent Retail on such rearrangement.
Cancellation is where an installation and / or training is no longer required. Where 2-4 weeks notice of cancellation is provided there is a charge of 8% of the total order value to cover costs incurred by Intelligent Retail and our partners. Where 2 weeks or less notice is given, a charge of £790 or 10% of the total order value (whichever is greater) will apply. The Customer agrees that such charge amounts to a genuine pre-estimate of the losses suffered by Intelligent Retail on such cancellation.
10.2. Balance for services, hardware and software excluding website design
Full payment is required at least 2 weeks prior to installation. Intelligent Retail reserves the right to cancel an installation if payment has not been made on time and charge interest as indicated in 9.6.
10.3. Websites
A 50% payment of the website and eCommerce price is required to book the website marketing consultation and subsequent design.
Regardless of the amount of the deposit, the balance payment is then required no later than four (4) weeks after the date of website consultation, or the date the design work started whichever occurred first. The reason this is specified is that development is a partnership activity where the customer provides some information through the design process and the duration of the design process will differ from one customer to another. It is important to understand that this payment is due no matter what stage the design is at currently.
10.4. Hosting
Hosting fees for; i) the Connect main database and ii) the website, commence from date of first hardware installation; not from the date the website goes live. Prior to installation, Intelligent Retail set up each customer’s complete hosting environment to include space for the main Connect database as well as the website (including website database, website pages and website system code). The cost of setting the environment up is covered in our standard hosting fees. The Customer can opt to split the hosting charge if at least 1 week’s notice is given prior to the initial installation. This provides the Connect database hosting only and excludes the website. When the website design process is started, i.e. the Website Consultancy is delivered, the website hosting fee will be initiated (this provides hosting on the Web Designer servers). When the website is ready, i.e. signed out of design, an engineer will reconfigure the live hosting environment to add in the website systems, the fee for this engineering works is £295.
10.5. Support renewal
10.5.1. General Support. The support contract renewal should be paid prior to the expiry of the Customer´s existing contract. If renewal has not been received prior to the end of the support period, entitlement to access the support team as well as product updates will be removed.
10.5.2. Web Site Support & Development
To ensure the continued provision of high quality support and to fund ongoing development of the website, the Website Support & Development program runs alongside the standard technical support contract for all customers with Connect websites. This support is free for the first year then comprises a sliding scale of charges between 0.9% and 0.4% is applied based on the previous year's annual turnover of the Customer's website. For a £100,000 turnover, the customer will pay £900. To identify the previous years revenue the Customer gives Intelligent Retail the rights to run a report at the end of the year to show trading website revenues. This data will be used solely for the purposes of setting the correct pricing band for web site support. This report does not measure refunds.
10.6. Late Payments
Payments are deemed late if they are paid after the timeframe agreed as outlined in this document, agreed in the Scope of Work or after 30 days following invoice. Any payments shall be made without set off or deduction and in the event of any late payment, Intelligent Retail shall be entitled to charge interest at a rate of 4% above the base rate of Barclays Bank plc, from the date the payment was due until date of payment.
Customer shall not be entitled to delay or withhold payment on account of any alleged claim. Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
All payment payable to the Company shall become due and payable immediately upon termination of this Contract despite any other provision.
We reserve the right to suspend any or all of our services in the event of non-payment of any overdue invoice (pro-forma or otherwise). Such suspension of services (in whole or in part) also suspends all of our obligations to you (whether or not directly related to the portion(s) of services suspended), but all of our rights, as well as all of your obligations to us, in the matter of payment or any other matter, remain in full force and effect. If any services provided by us are suspended or ceased because of your non-payment or because of any breach of contract on your part, we have the right to charge you a restitution fee of £100 plus VAT, should you wish us to continue to provide the service and should we agree to do so.
11. Damages, Shortages or Loss in Transit
The Customer shall inspect the Products immediately on delivery and Intelligent Retail will accept responsibility for damages, shortage or loss in transit only if:
i. Such loss or damage is noted on the consignment note or delivery document upon receipt, and copies provided to Intelligent Retail or is notified in writing to Intelligent Retail in cases of outwardly non visible loss or damage to unchecked Products to arrive in either case within five (5) working days from receipt of the Products by the Customer; and
ii. In cases of suspected damage in transit the added packaging is retained for inspection; and
iii. The Products are handled by the Customer in accordance with the carriers´ conditions of carriage or handling stipulations.
Where Intelligent Retail accepts responsibility under this clause Intelligent Retail shall at its option replace or repair any Products proved to Intelligent Retail´s satisfaction to have been lost or damaged in transit.
12. Acceptance of Products
For Intelligent Retail installed Products, satisfactory completion of Intelligent Retail´s standard test procedure will be sufficient to establish acceptance. If, within seven (7) days after physical installation in the absence of written notification of valid reasons justifying non acceptance, the Customer shall be deemed to have accepted the Products. If installation is not performed by Intelligent Retail, Intelligent Retail shall be under no obligation to perform any acceptance test procedures and the date of acceptance shall be the date of delivery to the Customer.
13. Intelligent Retail´s Liability
i. Products have been manufactured or developed by Intelligent Retail or third parties to standard specifications. The Customer accepts that Intelligent Retail is acting only as a supplier and that it is the Customer´s responsibility to verify that the Hardware, Software and Services (including hosting of database and websites) will be suitable for its own requirements. There are no warranties, conditions, guarantees or representations as to description merchantability or fitness for a particular purpose or other warranties, conditions, guarantees or representations whether express implied by statute or otherwise oral or in writing except as provided herein and except as to statute implied terms as to title. For the avoidance of doubt, regarding database and website hosting services, Intelligent Retail make no claims to deliver 100% uptime and are not liable for any losses incurred through any downtime whatsoever.
ii. Notwithstanding (i) above the remedies set out in this Agreement do not apply to customer transactions except in so far as they add to Customer´s rights implied by statute. In relation to such transactions the rights and obligations of Intelligent Retail and the Customer in respect of defects in any Products supplied by Intelligent Retail to the Customer under this agreement, the fitness for any particular purpose of such Products and the correspondence of such Products with any description or sample shall be determined by the Terms and Conditions implied by Statue.
iii. Notwithstanding (i) and (ii) above all rights which the Customer may have under the customer Protection Act 1987 and the customer Protection (Distance Selling) Regulations 2000 are in addition to those set out in this Agreement.
iv. The Customer agrees that Intelligent Retail will not be liable for any loss arising out of the provision of goods or services by any company organisational person other than Intelligent Retail or for any loss caused by the Customer´s failure to perform his obligations in relation to this agreement.
v. Intelligent Retail shall not in any event be liable for any indirect, special or consequential loss, howsoever arising (including but not limited to loss of anticipated profits or of data) in connection with or arising out of the supply, functioning or use of the Hardware or the Software even if Intelligent Retail shall have been advised of the possibility of such potential loss and shall not be liable for any loss except as provided for in this agreement.
14. Risk
Risk of loss or damage of any Hardware or Software shall pass from Intelligent Retail to the Customer on delivery of any such goods to the Customer´s premises. The Customer agrees to insure such goods on delivery.
15. Use of systems
For the avoidance of any doubt, it is the customer´s responsibility to import or add all data including staff and stock information to the Connect system. Intelligent Retail is not responsible for the maintenance, management, security or integrity of the Customer´s data. Intelligent Retail accepts no liability for the loss of any data or otherwise. Any services provided including backup and data sharing are at reasonable endeavours and the customer is entitled to make additional provision in these areas if it is deemed necessary.
16. Insolvency of Customer
16.1 This Clause applies if:
16.1.1 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
16.1.2 an encumbrancer takes possession, or a receiver is appointed over any of the property or assets of the Customer; or
16.1.3 the Customer ceases or threatens to cease to carry on business; or
16.1.4 the Company reasonably apprehends that any of the events mentioned above are about to occur in relation to the Customer and notifies the Customer accordingly.
16.2 If this Clause 15 applies then without prejudice to any other rights or remedies available to the Company the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered and not paid for the price of the Goods in question shall become immediately due and payable notwithstanding any previous agreement or arrangements to the contrary.
17. Force majeure
Intelligent Retail shall not be liable for any failure in the performance of any of its obligations under this agreement caused by factors outside its control.
18. General
18.1 No waiver by Intelligent Retail of any breach of Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provisions of these Conditions.
18.2 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
18.3 All notices served under these Conditions shall be in writing and shall be sent to the address of the recipient set out in the invoice (or to any later address in the United Kingdom notified for that purpose) and all notices delivered personally or sent by first class prepaid letter or by facsimile transmission shall be deemed to have been served:
18.3.1 immediately if they were sent by facsimile; and
18.3.2 on the second Business Day after posting if served by first class post; and
18.3.3 by delivery of the notice through the letter box of the party to be served and shall be treated and served on the first Business Day after delivery.
18.4 Intelligent Retail reserves the right to amend these Conditions in respect of any promotion, offer or the like made or issued by Intelligent Retail from time to time in relation to the Goods.
18.5 These Conditions shall be governed by and construed in accordance with the laws of England.
18.6 The Customer warrants that he has not relied on any oral representation made by Intelligent Retail.
19. Additional terms
19.1 The terms set out in this Clause 18 shall apply only to those persons who deal as a customer as defined in the customer Protection (Distance Selling) Regulations 2000 (Regulations).
19.2 A customer shall, subject to the terms set out in this Clause 18, have the right to cancel a Contract within 7 working days from the day after the date of delivery of the Goods by Intelligent Retail to the customer provided that he/she gives written notice of such cancellation in accordance with Clause 17.3.
19.3 If a customer exercises his/her right to cancel a Contract pursuant to Clause 18.2, Intelligent Retail shall, in accordance with the Regulations, reimburse any payment made by the customer within 30 days from the day on which he/she gave such notice of cancellation, provided that the customer shall not be entitled to a prepayment in the event that:-
19.3.1 he/she does not take reasonable care of the Goods either prior to cancellation of the Contract or, following cancellation, while the Goods remain in the possession of the customer. For the purposes of this sub-clause 18.3, a customer shall be deemed not to have taken reasonable care of the Goods if such Goods are not kept packed in their original box, with all disks, manuals and cables and the external packaging is defaced or damaged in any way ; or
19.3.2 the Goods consist of in whole or in part of software which he/she has accepted the licence to such software by either breaking the seal or registering the software licence on-line or over the telephone.
19.4 Any Goods returned by a customer pursuant to this Clause 18 shall be subject to a return charge of £10.00 plus VAT per Goods returned which represents the direct costs incurred by Intelligent Retail for such return.
20 Support
20.1 Intelligent Retail has the right to deny Customer Support if the Customer fails to demonstrate that they are indeed a Customer with valid Support Contract and therefore authorised to request that changes be made to their systems. The Customer acknowledges that it may not always be possible for Intelligent Retail to guarantee that breaches will not occur and therefore agree to cooperate in their requests for Customer authentication should it be deemed appropriate to do so.
20.2 Intelligent Retail strives to maintain excellent relationships with Customers. We do however reserve the right to withdraw service if the Customer communicates with staff in an unreasonable, provocative, abusive, aggressive or threatening manner. Intelligent Retail staff are paid to provide assistance to Customers and Intelligent Retail does not tolerate unreasonable behaviour toward them. Should this occur, Intelligent Retail will provide a verbal or written warning, then upon reoccurrence either withdraw service on a limited basis, i.e. for a limited time period, for certain personnel in the Customer's organisation, or for telephone support, or withdraw service completely. In all cases the Customer is liable for full support fees for the whole period, they will still be entitled to software updates where these are deemed essential.
20.3 Intelligent Retails policy is to close any support call raised on the helpdesk where all the following circumstances are true (unless further clarification or evidence is forthcoming from the customer):
- Our support personnel cannot recreate the issue.
- Our testing team cannot recreate the issue.
- Our IBM software testing robots that are capable of running hundreds of test scenarios, cannot create issue.
- No other customers have reported the same or similar issue.
- The customer cannot demonstrate the issue or give clear steps on when or how the issue occurs.
20.4 Occasionally Customers request that multi-year support services are provided, usually for reasons of funding. It is not standard policy to provide this. Therefore where a support and hosting service has been sold for longer than 12 months, Intelligent Retail reserve the right to withdraw the service at the completion of the then current year. In this event, Intelligent Retail will issue a refund for the remaining years.
B. INSTALLATION
1. General
This content defines the standard terms and conditions of supply which apply to Works carried out as part of projects defined by Intelligent Retail Scope of Works ("SoW"). Where additional, or amended, terms and conditions are specifically required by the Customer these are identified within the Additional Notes section of the respective SoW document.
2. Access
Times of installation may vary but can be between the times of 9am and 5pm. By prior appointment the teams may require access to the premises at these times. If access is restricted Intelligent Retail reserve the right to charge for an additional half day or day installation to complete the planed works.
3. Pre-Requisites
The pre-requisites (such as broadband being installed and switched on) must be completed one (1) week prior to installation date. If Works have not been completed then the installation may have to be re-arranged and additional charges applied.
3.1 All Hardware, Software and network cabling components associated with this order must have been ordered and delivered from either Intelligent Retail, or a Third Party supplier, in time for the commencement of the Works.
3.2 Arrangement and/or completion of any Third Party services required as part of the Works.
3.3. If third party hardware is used the customer must check at least 2 weeks prior to installation that the specification is appropriate for the installation of Connect. Intelligent Retail will not install Connect on equipment that is not to the appropriate specification.
4. Intelligent Retail Personnel
4.1. The Intelligent Retail installation engineer will be responsible for carrying out the Works defined within the SOW, unless otherwise stated.
4.2. The Intelligent Retail installation engineer may decide to involve other Intelligent Retail personnel to assist with the Works defined in the SOW.
4.3. Behaviour. Intelligent Retail personnel are used to working in live retail environments and will behave in a courteous and polite manner at all times.
4.4. Responsibility. Whilst working on site Intelligent Retail is not liable for any accidental breakages of furnishings or equipment, or loss of sales arising from the activities undertaken on site.
5. Commencement of Works
5.1. The scheduling of the Works will only take place when an SOW has been written by Intelligent Retail and an order has been received.
5.2. The date for the commencement of Works will be agreed between Intelligent Retail and the Customer. IMPORTANT - PLEASE NOTE ? A CANCELLATION CHARGE MAY APPLY.
6. Acceptance Testing
6.1. The Intelligent Retail installation engineer will undertake a series of basic Acceptance Tests to demonstrate to the Customer that the Works defined in the SOW have been successfully completed.
7. Duration
7.1. An estimate of the duration of the on-site time may be stated in the main part of the SOW. As this is an estimate only the time required on site may vary. Any changes in the time on site will be notified to the Customer as soon as possible.
7.2. The Intelligent Retail installation engineer will decide which of the activities are to be carried out on site and which can be most effectively carried out elsewhere.
7.3. In the event that the Intelligent Retail installation engineer completes the Works defined in the SOW before the end of the allotted time, they will not be obliged to perform tasks not covered in the SOW or remain on site.
8. Customer Responsibilities
8.1. Unless agreed otherwise unpacking and the positioning of all Hardware equipment in its final location prior to the commencement of the Works.
8.2. Ensure that the users of any existing systems that are being upgraded, or extended, are informed that the systems will be unavailable during the period over which the Works are being carried out.
8.3. Ensure that any existing Cabling Infrastructure is functioning correctly.
8.4. Ensure that any copies of Software required for the configuration of any Hardware, not supplied as part of the order, are available prior to the commencement of the Works.
8.5. Ensure that any copies of Software required for the configuration of Software Applications, not supplied as part of the order, are available prior to the commencement of the works.
8.6. If the customer has a network server ensure that full, verified tape backups of any existing network Servers are made prior to the commencement of the works. In the event of unforeseen difficulties the Intelligent Retail installation engineer may have to use these backups to restore Servers to their previous state. The Customer is therefore responsible for any loss of data due to failure, or incompleteness, of any backup tapes provided.
8.7. Ensure that for any existing Servers boot disks and emergency repair disks are prepared prior to the commencement of the Works and following the completion of the works.
8.8. Provide the Intelligent Retail installation engineer with appropriate user´s logon identity and password for all existing computer systems to be accessed.
8.9. Ensure that the Intelligent Retail installation engineer is granted full and exclusive access to all cabling and areas where work is required as well as parts of the network between 9 a.m. and 5 p.m. Any Works to be undertaken outside of these hours will be agreed with the Customer.
8.10. Ensure that members of the Customer´s IT support staff or outside company may be easily contacted during the period over which the Works are being carried out.
8.11. Ensure that the Intelligent Retail installation engineer is informed of any operational difficulties with either any existing network or building infrastructure prior to the commencement of the works.
8.12. Ensure that full and legal licenses are possessed for all Software installed on the Server or Workstations before, during or after the Works to be carried out.
8.13. Following the completion of the works and with the exception of any outstanding actions detailed in the Engineers Scope of Works form the customer must endeavour to functionally check all Hardware and Software installed or configured under the SOW.
8.14. Functional checks should be carried over the first five (5) days under full operational conditions i.e. with normal numbers of users logged on and accessing the Hardware and Software in typical modes of use.
8.15. Incidents where Hardware or Software fails during the functional checking should be reported directly to Intelligent Retail Support.
8.16. Customers should expect to carry out reasonable levels of diagnostics and assistance to Intelligent Retail Support in rectifying any reported failures.
8.17. Issues of a non-technical nature arising from the works, or enquiries regarding outstanding tasks should be reported to the Intelligent Retail project co-ordinator.
8.18. Packaging. Our installation engineers will not remove equipment packaging from the premises. We recommend the customer keeps the boxes in case the equipment needs to be moved or returned for any reason including repair.
8.19. Parking. Our installation engineer will bring the hardware equipment to site. They will need to park within 300m of the shop to drop off this equipment. If any parking permits are required these must be obtained for the duration or works on the installation day. The permit should have been received within 1 week prior to installation date. If appropriate parking is not available we reserve the right to rearrange installation for a date when access is available.
8.20. Work permits. Often in shopping centre's a work permit is required by our engineers to conduct installation and / or maintenance works. This often has implications on validity of professional insurances. It is the customers responsibility to ensure a valid work permit exists for the installation day. These permits must be in place up to one week prior to installation date. If appropriate work permits are not available we reserve the right to rearrange installation.
9. Non-Functional Systems
9.1 Intelligent Retail cannot be held responsible where a system cannot be made to function correctly for reasons beyond our reasonable control, e.g. virus infection, misuse or abuse, force majeure, faulty or incompatible Hardware (unless supplied as part of this integration work), problems with broadband or corrupt or incompatible Software supplied by the Customer.
10. Price
10.1 The price quoted is based on the notes made in the project documentation. If for example your Broadband modem is installed in a different place to that expected and we have to undergo extra cabling work then we will charge for this work and materials used.
10.2 The price for installation is based on typical building conditions that allow simple application of trunking and cable runs. Intelligent Retail do not tend to conduct pre-installation site surveys as these can add a significant cost to an installation. If there are reasons upon installation why extra expense is incurred then Intelligent Retail reserves the right to charge for any extra time on site and materials required.
10.3 Whilst an engineer is on-site if it is found that extra chargeable work is required then permission of a manager will be sought before proceeding with additional Works. However if a manager is not available the Customer agrees it is practical to proceed without permission of a manager providing the costs are within 20% of the overall installation cost as this is preferential to the installation being aborted. If costs are higher than 20% of the installation cost then the installation may have to be aborted rather accumulate than costs that the Customer might not want incur.
C. WEBSITE DESIGN & WEBSITE SERVICES
1. General
This content defines the standard terms and conditions of supply which apply to Works carried out as part of a web design project.
1.1. Internet router
The Connect system uses the internet for communicating changes as well as backup of your important information. Intelligent Retail has found that broadband routers differ in quality and the best approach for reliability if to use a single tested router. In order to keep support and installation costs to a minimum in our standard service we will exchange any existing router with the current recommended router.
If for any reason the Customer needs to keep the existing router connected in place please let Intelligent Retail know at least two (2) week´s prior to installation as additional works many need to be planned and additional charges may apply.
1.2. Website hosting
Intelligent Retail occasionally get asked by Customers whether they can host their own website and database. Whilst this can be done, there would need to be development and testing of the proposed host with various software management programs installed. Connect relies on a solid and reliable host and a lot of testing has gone into making sure the existing solution is solid.
1.3. Website design copyright
Original sketches, copy, drawings, computer designs and artwork produced in the course of the Project and adopted and used by the Customer in practice will become the Customer´s property upon settlement in full or all invoices relating to the Project. All other original sketches, copy, drawings, computer designs, media plans and artwork will remain the property of Intelligent Retail.
1.4. Website marketing
The Connect system is a tool and as such does not guarantee sales or placement in any search engines. Whilst the websites are designed in a way in which search engines can easily locate pages and list them as high as possible, there can be no guarantees. Additional services are available for marketing guidance and implementation of multi channel businesses.
1.5. Confidentiality
Intelligent Retail shall both during the project and after its termination keep confidential and not (except as authorised or required by the purposes of the Project) use or disclose or attempt to use or disclose to any person any information which you previously indicated is confidential.
2. Pre-Requisites
2.1. URL
Intelligent Retail advise that the Customer buys the required URL (website address) prior to works commencing.
2.2. Words
The Customer should prepare words for each web page they have selected, for example Terms and Conditions, Services, About Us and Contact Us.
2.3. Pictures
Intelligent Retail recommends that customers ask suppliers for product pictures as early as possible.
3. Commencement of Works
3.1. The scheduling of the Works will only take place when an order signed by an Authorised Signatory, has been received by Intelligent Retail and the deposit payment has been received.
3.2. The date for the commencement of Works will be agreed between Intelligent Retail and the Customer.
4. Design changes
4.1 The initial design consultation will identify the main design elements and work will be initiated accordingly.
4.2. There are various phases in the design depending on what the customer purchased. The Customer is entitled to feedback and to request design changes, or wording altered up to the point of Design Sign Off, at which time the website will be transferred to the Production server so that the Customer can upload products. At this point the designer no longer has access to the site and no additional design changes will be done so the Customer has no more opportunities to influence the design but they will be able to change some parts of the website after the development is complete. If the customer would like additional changes these will be chargeable.
4.3. Where Intelligent Retail work with external designers to create a website, or an existing website is copied we will do what we can to build the design into the framework with reasonable endeavours. Intelligent Retail will decide when enough design time has been applied to meet the requirements. Intelligent Retail make no promises about meeting any specific designs and there is likely to be some level of compromise required.
4.4. Intelligent Retail will work with the Customer in designing the website. We will make reasonable changes to the website design depending upon service level purchased. Whilst we always endeavour to meet the Customer's requirements, we reserve the right to refuse any requested changes if we feel it will impact on the functionality or usability of the website, or if is outside of the scope of the service level purchased. Intelligent Retail cannot make promises up front on when websites will go live, if the Customer makes any arrangements for a go-live date the risk is theirs to take and Intelligent Retail accept no liability if the website is not released on time.
4.5. We may change the technical specification of our services at any time, with a view to improving the service.
4.6. The competition for viable search engine positions in some market sectors is very strong, and success is often only made possible by the expenditure of a large amount of money and/or being a large organization with many affiliates. People who do not spend a large amount of money are likely to struggle to compete in these competitive sectors, but because there are a great many factors which influence the attainment of positions in a given search engine, and because these factors change frequently, it is not necessarily impossible for a promotion in such a market sector to return good results. We can offer no guarantee of position or results at any time. We do not make any representation as to the number of positions, if any, we will attain for you and no refunds will be given irrespective of the number of positions attained, even if that number be zero. The act of preparation and submission of your website optimisation or promotion shall be our sole consideration in this agreement.
4.7. The Customer agrees that they will be reasonable in terms of their expectations in the website design and will clearly communicate with the Website Design team promptly and efficiently. A Level 1 and Level 2 website provides a cost effective yet professional looking solution and the Supplier makes no promises to copy any website in design or in function no matter how simple the Customer deems it to be, unless a Level 3 Bespoke website has been purchased and the specific requirements communicated by the Customer up front. If the Customers requirements differ from those originally understood by the Supplier, the Supplier reserves the right to alter the Website Level and associated charges accordingly.
5. Acceptance Testing
5.1. Once the design has been agreed and the Customer has loaded products to the live site Intelligent Retail will test the website, this usually (but not always) includes purchasing an item online. The Customer will however take responsibility for ensuring the Website is correct before they decide to Go Live. We therefore recommend the customer thoroughly checks the operation of the website beforehand. This is good practice as it is important the Customer understands the steps their customers will need to use the website.
6. Customer Responsibilities
6.1. Provide clear design steering at the initial stages of design.
6.2. Provide complete written material for each web page, for example Terms and Conditions.
6.3. Provide input at action in a timely and reasonable manner through each phase of the design.
7. Liability
7.1. The Customer acknowledges that we shall not be liable to them in respect of any loss or damage arising from your use of or reliance upon any advice or information provided by us.
7.2. The Customer understands that we will normally follow published search engine guidelines and will promote their site according to our experience. We shall have no liability whatsoever should any search engine choose to penalise the website in any way. We do not consider a penalty to be likely, but the risk is one which the Customer agrees to take entirely on themselves.
7.3. We shall not be liable to the Customer nor to any third party under this Agreement in contract, tort or otherwise for any direct or indirect loss of profit, anticipated savings, business, contracts, revenue, time, goodwill or loss of or harm to data or other content or for any other indirect or consequential loss.
7.4. Nothing in the Contract implies or is intended to imply that we are under a duty to scrutinise the contents of the website or are liable for its contents. We are not a publisher for the purposes of any relevant legislation and perform no editing function in relation to the contents of the website.
8. Optimisation and promotional service
8.1. The Customer grants us exclusive authority for the Term to submit the Website to the Search Engines. The Customer grants us full authority to conclude Contracts in relation to the Search Engines on your behalf with relevant third parties.
8.2 We are under no obligation to submit the Website or Webpages to any Search Engine which begins accepting Submission on a payment-only basis at any point during the Term.
8.3. Some search engines require payment on an ongoing basis for the maintenance of positions once they have been attained. All such payments must be made by the Customer if the positions are to be maintained. All positions in such search engines will be considered for the purposes of this agreement to be present at all points throughout the Term, even if the Customer has in fact allowed them to lapse.
8.4. Whilst every effort will be made to take into account the Customer's wishes regarding the content and/or the appearance of the webpages, optimisation is likely to impact the design of pages and the homepage to achieve satisfactory rankings in the Search Engines. As a consequence, we have full authority and control over the final design of the webpages. If the Customer rejects designs this is likely to have an adverse impact on search engine performance.
8.5. SearchPhrases. We use our expertise to help market the website to the proper audience and effectively use it as a selling or promotional tool. In some circumstances, the searchphrases (or derivatives thereof) selected by the Customer may be considered unsuitable for promotion by us because they are not sufficiently specific. If a phrase is very generic, we may consider it very unlikely that we will attain positions for it, or if positions are attained, that they will be held for any length of time, and thus we would be less likely to be able provide you with the appropriate level of service. Additionally, a very generic phrase, if prominently positioned in the search engines, may generate higher levels of visitors to the website than a more specific searchphrase, but research has shown that it will provide a very poor conversion rate of visitors to purchases. If the Customer chooses such a phrase, we may at our discretion replace it with a phrase of our choice but which is relevant to the Website – we will do this in order that more of the searchphrases will have a greater chance of attaining good positions, and provide more benefit.
8.6 Working with 3rd Party SEO companies. Where a customer would like a 3rd party SEO company to optimise their website Intelligent Retail will provide the following support program.
- Consent. Customer must send us written approval (by fax or email) giving us permission to communicate with a representative of the SEO company. The written consent should include the SEO company address, contact name, telephone number and email.
- Guidance. In return we will provide our guidance helpsheet to the SEO company which details exactly how SEOs can optimise the meta data on the website using the tools available within Connect.
- Support. We do not provide direct telephone support to the 3rd Party SEO company. We will provide limited email support with a 7 day turnaround. If the SEO company wishes to raise an urgent issue it should be done via the customer, we would prefer and recommend this is done in writing. This process is in place to ensure the customer is absolutely clear what the SEO company is asking for.
- Access. We do not allow direct editing of the website. Our servers support over 100 trading websites turning over millions of pounds. We cannot allow anyone access to these servers as it greatly increases the risk of failures occurring resulting in potential downtime for everyone. The Customer may provide the SEO company with access to their Metadata Manager using the tools built into Connect. If the SEO company needs to upload new pages or edit existing pages they can utilise the functionality provided to customers using either the Online Editing Tool or the FTP upload system built into Connect. If the customer wishes them to do this then they must provide the relevant access from their own system. We suggest customers are very careful with their system logins and passwords.
- Charges. We will charge an hourly rate for advice and support of SEO related activities whether this is for the Customer directly or their 3rd Party SEO company.
D. ON SITE HARDWARE WARRANTY
Where the Customer has purchased the additional On-Site Maintenance Service, Intelligent Retail (The Supplier) herein agrees to supply the Maintenance Services as set out in the Schedule hereto the Customer in respect of the Equipment at the Location.
1. Definitions
In this Agreement unless the context otherwise requires, the following expressions have the following meanings:
“The Equipment” means the computer equipment specified in the Schedule and such additions and changes thereto as shall from time to time be agreed in writing between the parties.
“The Location” shall mean the address specified in the Schedule hereto or as shall be notified to The Supplier by the Customer in writing from time to time.
“The Commencement Date” means the date on which this Agreement shall become effective as specified in the Schedule.
“The Initial Period” means the period of 12 months or other such term as detailed in the addendum from the commencement of this Agreement.
“The Supplier” means Intelligent Retail.
“The Maintenance Partner” means Intelligent Retail or the companies it selects to deliver the maintenance service.
“The Scheduled Maintenance Services” means the maintenance services to be provided by The Supplier pursuant to Clause 2.
“The Emergency Maintenance Services” means the emergency maintenance services to be provided by The Supplier pursuant to Clause 4.
“The Maintenance Services” means the Scheduled maintenance services and the emergency Maintenance Services.
“The Maintenance Charge” means the periodic charge for the Scheduled Maintenance Services as specified in the Schedule.
“Maintenance Hours” means the hours set out in the Schedule, but excluding Bank & Public Holidays. Maintenance services can be provided over Bank & Public Holidays if requested at an additional charge.
“The Authority” means British Telecom or other supervising telecommunications authority or contractor.
“Year 2000 Compliant” shall mean that neither performance nor functionality is affected by dates prior to, during and after Year 2000. In particular;
I. No value for current date will cause any interruption in operation;
II. Date-based functionality must behave consistently for dates prior to, during and after Year 2000;
III. In all interface and data storage, the century in any date must be specified either explicitly or by unambiguous algorithms or inferencing rules; and
IV. Year 2000 must be recognised as a leap year.
2. Scheduled maintenance services and maintenance hours
2.1. During the continuance of this Agreement the Supplier shall use its reasonable endeavours to provide the following Maintenance Services in respect of the Equipment. On receipt of a request for corrective maintenance the Supplier undertakes to use reasonable endeavours to respond with a suitably qualified service engineer within the Response Time specified in the Schedule during Maintenance Hours. Due to occasional peaks in demand the Supplier cannot guarantee a response within the Response Time. The Supplier shall during Maintenance Hours use reasonable endeavours to carry out such repairs and adjustments to and replace such parts of the Equipment as may be necessary to restore the Equipment to its proper operating condition. This may include swapping a part or, more likely, a complete unit out with a working equivalent of a similar type. Should this be the case the original equipment will be repaired and returned to storage to use as future swap out kit, the Customer will not receive their original equipment back again. If the Customer has any obligations to other parties such as Lease Company to inform them of a change to the serial number then this is up to the Customer to do this and the Supplier takes no responsibility for doing so.
2.2. If the Supplier is unable to provide a fix for the Equipment and an equivalent replacement is not available the Supplier may advise that the unit is returned to the manufacturer for repair under warranty. The Supplier is under no obligation to provide a Loan Unit. In this event the Customer will have to use an alternative means to continue trading.
2.3. Additional information about the service may be indicated on the Schedule.
2.4. The scheduled maintenance services will be provided during the Maintenance hours as specified in the Schedule according to the following service type:
5 DAYS - Monday to Friday 09:00 – 17:00
Other hours subject to negotiation and acceptance by The Supplier. These hours to be attached and signed by both parties, forming an addendum to this agreement.
3. Charges
- In consideration of the Scheduled Maintenance Services, the Customer shall pay the Maintenance Charges periodically in advance as specified in the Schedule. The Maintenance Charge shall be paid without prior demand and no payment shall be considered made until it is received by The Supplier. All payments shall be made by cash or cheque or BACS.
- The Supplier shall be entitled at any time and from time to time after the expiry of the Initial Period to increase the Maintenance Charge and Emergency Maintenance charge by giving to the Customer not less than 60 days prior notice. Where and when ever such notice is given, the Customer shall have the right to terminate this Agreement as from the date on which such notice expires, by giving The Supplier written notice of termination not less than 30 days before such date.
- Any charges payable by the Customer in addition to the Maintenance Charge for work excepted from this Agreement by Paragraph 5 and Paragraph 7, shall be paid (unless otherwise provided elsewhere in this Agreement) within 14 days after receipt of The Suppliers invoice therefore.
- The Maintenance Charge and any other charges payable by the Customer to The Supplier under this Agreement are exclusive of Value Added Tax which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
If the Maintenance Charge or such Charge as is referred to in Paragraph 3.3 hereof payable by the Customer to The Supplier under this Agreement is not paid by the due date, then (without prejudice to The Supplier their rights and remedies) The Supplier reserves the right to charge interest on such sum on a day to day basis (as well as before any judgment) from the due date to the date of payment (both dates inclusive) at the rate of 4% above the base rate of BARCLAYS BANK Plc for the time being in force.
4. Emergency maintenance services
If previously agreed and confirmed on The Schedule, in addition to the Scheduled Maintenance Services The Supplier shall provide during the continuance of this Agreement an emergency corrective maintenance service outside Maintenance hours as soon as practicable after receipt of a request by the customer therefore (such request to be made during Maintenance hours) at The Supplier standard scale of charges for such service for the time being in force. Such charges shall run from departure from service base of The Maintenance Partners engineer to return to base, including all time spent on location.
5. Exceptions
5.1. The Maintenance Services do not include any maintenance of the Equipment, which is necessitated as a result of any cause other than fair wear and tear including without limitation.
A) Failure or fluctuation of electric power air conditioning humidity control or other environmental conditions or
B) The neglect or fault of the Customer or third party or
C) Any fault in any attachments or associated equipment which do not form part of the equipment including any equipment belonging to the Authority or
D) The use of defective or inappropriate supplies with the Equipment or
E) Any defect or error in any software used upon or in association with the Equipment
F) The Customer’s failure inability or refusal to afford The Maintenance Partner personnel proper access to the Equipment; or
G) Any act of God fire flood water wind lightning transportation vandalism burglary war or any other similar occurrence or
H) Year 2000 compliance issues in the equipment, it’s associated software or operating environment
5.2. The Supplier will (if it is able to do so) at the request and expense of the Customer repair or replace any part of the Equipment which has failed due to a cause other than fair wear or tear or neglect or fault subject to the Customer accepting The Supplier written quotation therefore prior to the commencement of work.
5.3. The Supplier reserves the right to make additional charges for all work undertaken which is additional to or outside the scope of the contracted service. Examples of these chargeable items include the following.
A) Coffee spills or other foreign substances damaging the equipment in any way.
B) Presence of paper clips, coins etc., in the equipment.
C) Defective coins in Coin Dispensers / Acceptors.
D) No Fault Found / No Issue present – 1st / 2nd line checks to ensure this does not occur
E) Equipment training issues (Staff)
F) Lost or broken key and locks.
G) Any damage owing to customer misuse.
H) Cancelled call (where the engineer has arrived on site).
I) Any damage owing to fire, water, burglary, lighting strike, vandalism.
J) Any damage owing to the use of media, consumables, paper etc., which is not to the manufacturer’s specification.
K) Floppy disk metal sliders coming off in the floppy disk drive.
L) Faults or damage caused by power supply failures or fluctuations.
M) Equipment not switched on. 1st / 2nd Line checks to ensure this has been checked
N) Equipment inadvertently turned off. 1st / 2nd Line checks to ensure this has been checked
O) Cables in the wrong positions.
P) When an obvious reason is established for the equipment not being faulty e.g. The problem is caused by interference from another device or source.
Q) Any problems caused by customers unsuccessfully installing hardware or software on their systems.
R) Lost or unavailable passwords requiring engineering intervention to restore system access.
S) Virus problems requiring engineering intervention.
T) Printheads
U) External Cables.
V) Customer replaceable consumables are those wearing parts that can be replaced without removing covers or screws e.g. Toner cartridge, print cartridges, etc.
W) Engineer replaceable consumables are those parts of the printer that can only be replaced by removing covers and screws e.g. Fusers, feed rollers, wear pads, etc.
X) Major sub-assemblies such as certain display screens, which, when broken, cannot be repaired but must be replaced. The Supplier will (if it is able to do so), at the request and expense of the Customer, replace such sub-assembly subject to the Customer accepting The Supplier written quotation therefore prior to commencement of work.
5.4. The Maintenance Services do not include:
A) Service other than at the Location or such other location as The Supplier shall have approved in writing.
B) Repair or renewal of tapes, disks packs, printing ribbons, print heads, toner units, developer units, optical drums, fuser units, batteries, rubber feed wheels, laser diodes, CRT’s, Liquid Crystal Displays, detachable power leads, cabinet parts or other consumable supplies.
C) Physical damage of any form including faults arising as a result of drop damage.
D) Electrical or other environmental work external to the Equipment.
E) Maintenance of any attachments or associated equipment which do not form part of the Equipment.
F) Repair or renewal of cabling unless such cabling is specifically included in the Schedule.
6. Replacement parts
6.1. The Supplier reserves the right to supply new second-hand or reconditioned replacement parts in the performance of its duties hereunder.
6.2. Any parts of the Equipment replaced by The Supplier pursuant to clause 6.1 above (‘Replaced Parts’) shall upon replacement become the property of The Supplier and the Customer warrants that either it shall have a free and unencumbered title to such Replaced Parts or (where the Equipment is leased or charged that it shall have obtained all necessary consents and authorities to part with possession and give good title to the replaced parts.
6.3. The provisions of this Agreement shall apply to all replacements and renewals of any part or parts of the Equipment made by The Supplier during the continuance of this Agreement.
7. Service visits outside the maintenance services
The Supplier shall make an additional charge in accordance with its standard scale of charge for the time being in force based on the time spent on that call together with the travelling to and from the Customer’s premises for service visits:.
7.1. Made at the request of the Customer by reason of any fault in the Equipment due to causes not covered by the Maintenance Services;
7.2. Made at the request of the Customer but which The Supplier finds are frivolous or unnecessary and Paragraph 3.3 hereof shall apply to payment for such work.
8. Duration
This Agreement shall commence on the Commencement Date and shall continue for the Initial Period and shall remain in force thereafter unless or until terminated by either party giving to the other not less than three months written notice of termination or suspension expiring on the last day of the Initial Period or on any subsequent anniversary date thereof but shall be subject to earlier termination as provided elsewhere in this Agreement.
9. Customers obligations
During the continuance of this Agreement the Customer shall:-
Use and Care of the Equipment
9.1. Ensure that proper environmental conditions are maintained for the Equipment and shall maintain in good condition the accommodation of the Equipment the cables and fittings associated therewith and the electricity supply thereto.
9.2. Not make any modification to the Equipment without The Supplier prior written consent.
9.3. Keep and operate the Equipment in a proper and prudent manner in accordance with the manufacturers operating instructions and ensure that only competent trained employees (or persons under their supervision) are allowed to operate the Equipment.
9.4. Ensure that the external surfaces of the Equipment are kept clean and in good condition and shall carry out any minor maintenance recommended by the manufacturer from time to time.
9.5. Save as aforesaid not attempt to adjust or repair or maintain the Equipment and shall not request permit or authorise anyone other than The Maintenance Partner to carry out any adjustments repairs or maintenance of the Equipment.
9.6. Use on the Equipment only such operating supplies, as the manufacturer shall recommend in writing.
9.7. Not move the Equipment nor remove the Equipment from the location without The Suppliers prior written consent.
9.8. Not use in conjunction with the Equipment any attachment or additional equipment other than that which has been supplied by or approved in writing by the Manufacturer or The Supplier.
Access
9.9. Provide The Supplier with full and safe access to the Equipment for the purposes of this Agreement
9.10. Ensure in the interest of health and safety that The Supplier personnel while on the Customer’s premises for the purposes of this Agreement are at all times accompanied by a member of the customers staff familiar with the customer’s premises and safety procedures.
Notification and Information
9.11. Promptly notify The Supplier if the Equipment needs maintenance or is not operating correctly. Failure by the Customer so to notify The Supplier within fourteen days of the Customer first becoming aware of such failure or incorrect working shall free The Supplier from all obligations to investigate or correct such failure or incorrect working.
9.12. Make available to The Maintenance Partner such programs operating manuals and information as may be necessary to enable The Maintenance Partner to perform its obligations hereunder and shall if requested by The Maintenance Partner provide staff familiar with the Customers programs and operations which staff shall co-operate fully with The Supplier personnel in the diagnosis of any malfunction of this Equipment.
Make available to The Supplier free of charge all facilities and services reasonably required by The Maintenance Partner to enable The Maintenance Partner to perform the Maintenance Services including without limitation computer runs core dumps printouts data preparation office accommodation typing and photocopying.
Miscellaneous
9.13. Provide such telecommunications facilities as are reasonably required by The Maintenance Partner for testing and diagnostic purposes at the Customers expense.
9.14. Keep full security copies of the Customers programs data and computer records in accordance with best computing practice.
9.15. Keep a backup of all programs and data installed on the computer, this is particularly important as in the event of a failure it is likely The Maintenance Partner will exchange the computer for a permanent equivalent. In the likely event an equivalent computer is provided, The Customer accepts responsibility for installing their programs and data onto the replacement, other than the Operating System and the Connect program itself.
10. Customers warranty
10.1. The customer warrants and undertakes to The Supplier that it is the owner of the Equipment and/or that it has full power and authority to enter into this agreement and permit The Maintenance Partner to perform the Maintenance Services and any services provided hereunder
10.2. The Customer undertakes to indemnify and hold harmless The Supplier or The Maintenance Partner against any loss or damage that The Supplier or The Maintenance Partner may suffer as a result of a breach by the Customer of clause 10.1 above
11. Suspension of the maintenance services
11.1. Notwithstanding anything else contained herein the provision of the Maintenance Services may be suspended forthwith by The Supplier on giving notice in writing to the customer if the customer shall fail to pay any sum due under the terms of this Agreement.
11.2. The Maintenance Services will be reinstated on payment by the customer of the sum due under the terms of this Agreement.
12. Termination
12.1. Notwithstanding anything else contained herein this Agreement may be terminated
A) By The Supplier forthwith on giving notice in writing to the Customer if the Customer shall fail to pay any sum due under the terms of the Agreement.
B) By the Customer forthwith on giving notice in writing to The Supplier if the Equipment is lost stolen or destroyed or damaged beyond economic repair or
C) By either party forthwith on giving notice in writing to the other if the other commits any material breach of any term of this Agreement (other than failure by the Customer to make any payment hereunder in which event the provisions of paragraph (a) above shall apply) and (in case of a breach capable of being remedied) shall have failed within thirty days after the receipt of a request in writing from the other party so to do remedy the breach (such request to contain a warning of such party’s intention to terminate) and for the purposes of this Agreement a breach shall be considered to be capable of remedy if the party in breach can comply with the provision in question in all respect other than as to the time of performance (provided that time of performance is not of the essence) or
D) By either party forthwith on giving notice in writing to the other if the other party being a company shall have a receiver or liquidator appointed or shall pass a resolution for winding-up (otherwise than for the purpose of amalgamation or reconstruction) or a court shall make an order to that effect or being a partnership shall be dissolved or being an individual shall commit any act of bankruptcy or shall die if the other party (whether a company or not) shall enter into any composition or arrangement with its creditors or shall become insolvent.
E) By The Supplier after the first service visit by giving a full refund of all contract charges paid by the Customer should the equipment be found in the opinion of The Supplier to be beyond the state of economic repair.
F) By The Supplier at any time giving a pro rata refund of any Contract charges paid in advance by the customer should any replacement parts needed for the equipment be not available to The Supplier for whatever reason.
12.2. The right to terminate this Agreement given by this clause shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
12.3. Upon the termination of this Agreement for any reason subject as otherwise provided in this Agreement and to any rights or obligations which have accrued prior to termination neither party shall have any further obligation to the other under this Agreement.
13. Confidentiality
Each party shall treat as confidential all information obtained from the other pursuant to this Agreement and shall not divulge such information to any person (except to such party’s own employees who need know the same for the purpose of the carrying out of the obligations of the parties under this Agreement) without the other party’s prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiation leading to this Agreement which is already public working knowledge or becomes so at a future date (other than as a result of a breach of this clause). Each party shall ensure that its employees are aware of and comply with the provisions of this clause. The forgoing obligations as to confidentiality shall survive any termination of this Agreement.
14. Recruitment of staff
Each party to this Agreement undertakes to the other that it will not knowingly without the agreement of the other party employ or engage or offer or agree to employ or engage the services of any employee or paid consultant of the other party directly or indirectly who is involved in the performance of this Agreement. This undertaking will survive any termination of this Agreement.
15. Force majeure
Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
16. Customers warranty
The Customer warrants that he has not relied on any oral representation made by The Supplier.
17. Liability
The Supplier shall have no liability to the Customer for any consequential loss of the Customer arising out of or in connection with the provision of any goods or service pursuant to this Agreement (except in respect of death or personal injury resulting from negligence) including without limitation any loss of use of the equipment or loss or spoiling of the Customers programs or data and the total liability of The Supplier for any other loss of the Customer s arising in any year of this Agreement in respect of any one event or series of connected events shall not exceed the charges payable by the Customer for the Maintenance Service for that year.
18. Waiver of remedies
No forbearance delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right power or remedy herein conferred or reserved for either party is exclusive of any other right power or remedy available to that party and each such right power or remedy shall be cumulative.
19. Entire agreement
This Agreement constitutes the entire Agreement between the parties hereto and there are no agreements understandings or restrictions between the parties other than those set forth herein save that the parties may from time to time execute amendments to the Schedule hereto to add or delete locations equipment hours charges and days of coverage in respect of which this Agreement shall apply.
20. Assignment
The Customer shall not transfer or assign the benefit of this Agreement without the prior written consent of Impetus Technologies.
21. Notices
All notices shall be in writing and delivered to the address of the recipient set out in this Agreement or such other designated address. Any such notice may be delivered by hand or by first class prepaid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered; if by first class post 48 hours after posting and if by facsimile transmission when dispatched.
22. Headings
The headings to the clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
23. Law
This Agreement shall in all respects be construed and operate as an English contract. The parties hereby submit to the exclusive jurisdiction of the English Courts.
