Date: 08/03/19
In the absence of any special supplier agreement between the parties wherein alternative terms prevail, any work of any description undertaken by The EPOS Bureau Limited whose address is Tullynagarn, Lisnarick Road, Irvinestown, BT94 1EY (“the Company”) in delivering services to you, shall be subject to the following terms and conditions (‘the Terms and Conditions’), and no variation or modification of these Terms and Conditions shall be effective unless it is agreed by both parties in writing. Where a Customer has purchased a Care Pack, the “Care Pack Terms and Conditions” will apply in addition to this Agreement.
The headings contained in this document are for convenience only and shall not affect construction of these Terms and Conditions. References to the provision of any statute or legislation shall be construed as reference to such statute or legislation as from time to time amended, consolidated or re-enacted (without substantial amendment).
Definitions:
“Additional Products” means any Products supplied by the Company that do not fall within the Scope of Works;
“Additional Services” means any Services supplied by the Company that do not fall within the Scope of Works;
“Confidential Information” means any information and/or data disclosed by the disclosing party to the receiving party that is designated as "confidential" or which by its nature is clearly confidential or any information of a confidential or proprietary nature (irrespective of the form of presentation or communication including, but not limited to, computer software and data, physical objects and samples) relating to the business, operations, customers, processes, budgets, pricing policies, product information, know-how or strategy of the disclosing party;
“Contract” means an order placed by the Customer together with these Terms and Conditions;
“Completion” means when the Deliverables have been delivered by the Company and signed off by the Customer;
“Customer” means your business and includes the officers, employees and agents of your business;
“Deliverables” means the Products, Services, Support and associated Material specified as Deliverables in the Scope of Works Definition Documents;
“Intellectual Property Rights” means all patents, inventions, trademarks, service marks, logos, design rights, get-up, know-how, copyright (including rights in computer software), database rights, domain names, trade or business names, trade secrets, moral rights or other similar rights or obligations whether registered or not including applications for registration and all similar forms of protection anywhere in the world;
“Material” means the subject matter of any category of Intellectual Property Rights;
“Products” means any of the Company’s products as may be detailed in the Proposal;
“Proposal” means a document setting out the nature of the Products, Services and associated Material to be provided by the Company to the Customer;
“Scope of Works” means the works to be performed under the Proposal;
“Services” means the services expressly identified in the Proposal; and
“Support” means the ongoing support detailed in the Proposal.
1. Proposal
1.1 Where the Company provides the Customer with a Proposal, it will include the following:
a. A detailed description of the Scope of Works.
b. A list of assumptions and pre-requisites may be included in the Proposal.
c. A list of items that are explicitly outside the scope of works may be included in the Proposal in order to assist the Company and the Customer in defining the Deliverables.
d. Notwithstanding this, an item that is not explicitly stated to be outside the Proposal will not be implied to be included within the Proposal unless specifically addressed in the Deliverables.
e. A detailed description of the Deliverables
f. The fixed price, daily rate or hourly rate in relation to the Deliverables (exclusive of VAT)
1.2 It is the responsibility of the Customer to review the Proposal to ensure it meets their requirements. Following commencement of the Contract, any amendments to the Scope of Works will fall outside the Proposal and a separate fee will be raised by the Company.
2. Pricing
2.1 The Company will provide detailed pricing information in the Proposal.
2.2 The Customer agrees to pay the Company;
a. The sums detailed in the Proposal (exclusive of VAT at a rate of 20%)
b. The fees in such instalments as may be specified in the Proposal
c. All reasonable freight and delivery charges
2.3 The final balance is payable within 30 days of Completion.
2.4 In accordance with the Late Payment of Commercial Debts (Interest) Act 1998 interest will be payable on outstanding fees.
2.4.1 Where the fees are not received by the Company within the period set out in the Proposal the Customer agrees to pay the Company interest, on the basis set out in Clause 2.4 in addition to the outstanding fees.
2.4.2 Interest will be charged on the outstanding fees, at an annual percentage rate of 8% over the Bank of England’s Base Rate calculated on a daily basis, for each day that the fees are outstanding.
2.5 Quotations will be valid for the period detailed in the Proposal and thereafter, will be revoked by
the Company unless agreed in writing.
3. Additional Products and/or Services
3.1 It is the responsibility of the Customer to make the Company aware of any Additional Services or Products they require and Additional Services or Products will only be provided if they are requested by the Customer.
3.2 Any Services or Products supplied by the Company that do not fall within the Proposal will incur an additional cost to the Customer and will be detailed in an additional Proposal.
3.3 The Company may use a Short Order Form in respect of the Additional Products in the form appended hereto at Schedule One if appropriate. Where a Short Order Form is used instead of a Proposal, these Terms and Conditions continue to apply in full force and effect.
3.4 Any amendment to the Proposal may only be made through agreement in writing by both parties.
3.5 The Company is not obliged to agree to any changes to the Proposal following commencement of the Contract.
4. Alterations
4.1 The Company may at any time make any alterations to the Products and Services to be provided which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Deliverables.
5. Time Estimates
5.1 The Proposal may include time estimates pertaining to the install date if proposed by the Customer which relate to the time required to provide the Deliverables to the Customer.
5.2 The Company will use reasonable endeavours to comply with the Customer’s time estimates but time estimates will not be binding on the Company.
5.3 Any fluctuation in the time required to provide the Deliverables will not of itself affect the applicable fees under Clause 2.
6. Delivery
6.1 Delivery is deemed to take place when the Products are delivered to the Customer’s address, whereupon the risk of loss, breakage and all damage and all other risks shall pass to the Customer.
6.2 The Company shall not be liable for loss or damage to Products in transit unless the loss or damage occurs prior to arrival at the Customer’s address and damage is reported to the Company within three days of arrival.
6.3 Legal and beneficial title in the Products shall not pass to the Customer until payment is received in full by the Company of all sums owed to it on any account by the Customer, whether arising out of this or any other contract.
7. Customer’s Obligations
7.1 Customer Sign Off
7.1.1 The Customer agrees to review the work performed, and sign-off where appropriate and as required, within 5 business days of the Company notifying the Customer that all of the Deliverables, excluding ongoing Deliverables such as Support, have been satisfied.
7.1.2 Where the Customer is concerned that the Services provided by the Company do not satisfy all of the Deliverables, the Customer agrees to notify the Company immediately.
7.1.3 Where the Customer has not notified the Company of any concerns under clause 7.1.2 within 10 business days of the Customer notifying the Company that all of the Deliverables, excluding ongoing Deliverables such as Support, have been satisfied, the Customer will be deemed to have given sign-off.
7.1.4 It is the responsibility of the Customer to ensure that the Deliverables are signed off by an appropriately qualified member of staff.
7.2 Liaison and Access to the Customer’s Site
7.2.1 The Customer agrees, at its own expense, to provide the Company with:
a. a suitable representative to liaise with the Company. The Company reserves the right to request an alternative representative at any stage.
b. reasonable access to the Customer’s site, computer systems, equipment and Materials necessary for the Company to fulfil its obligations; and
c. such assistance as may be specified in the Proposal.
7.2.2 The Customer agrees that the Company may publicise the fact that the Customer is a client of the Company.
7.3 Use of the Deliverables
7.3.1 The Customer warrants that it will procure
a. the instalment of Uninterrupted Power Supply Units in line with the power requirements of the respective equipment and in line with any other requirements of the Company pertaining to IT infrastructure, networks, power and internet provision required for normal function.
7.3.2 The Customer shall only engage a verified and qualified installer in respect of any and all elements that the Deliverables depend upon for normal and proper function, including but not limited to, IT Infrastructure, networks, power and internet provision.
7.3.3 The Company shall not be liable to the Customer for the failure of the system where this failure is as a result of the failure of the Customer to comply with this clause 7.3.
7.4 Use of Third-Party Software
7.4.1 The Customer covenants with the Company that it will not allow any changes or modifications to the Company’s software to be made by any party other than the Company.
7.4.2 The Company will not be liable for any loss or damage caused by third party providers
7.5 Non Solicitation
7.5 The Customer covenants with the Company that it shall not, in connection with the carrying on of any business (similar to or in competition with) the Company’s business, on the Customer’s own behalf or on behalf of any person, firm or company directly or indirectly:
a. solicit for employment;
b. directly induce the termination of employment with the Company; or
c. employ (as an employee, subcontractor or independent contractor);
any of the Company’s employees, during the period in which such employee is providing services to the Customer on behalf of the Company and for a period of one year following the completion of those services PROVIDED THAT nothing in this clause shall prohibit the seeking or procuring of orders or the doing of business not relating or similar to the business described above.
8. Force Majeure
8.1 The Company shall not be liable to the Customer for any loss, damage or costs incurred due to a delay or failure, in whole or in part, to fulfil its obligations under an order where such delay or failure arises as a result of an event or circumstances beyond its control, which may include (but are not limited to) Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, terrorism, insurrection, civil disturbance or requisition, strikes, lockouts or other industrial action or trade union dispute, power failure or breakdown in machinery or any other event outside the Company’s reasonable control.
9. Confidentiality
9.1 Neither party will disclose to any third party, nor use for any purpose except as expressly permitted by these Terms and Conditions, any Confidential Information belonging to the other party.
9.2 Neither party will be in breach of any obligation to keep any Confidential Information of the other party confidential or not to disclose it to any third-party to the extent that it:
a. was rightfully in the receiving party’s possession prior to disclosure to it by the other party;
b. is already public knowledge or which becomes so at a future date (otherwise than as a result of breach of this Clause 9);
c. is received from a third party who, to the knowledge of the receiving party, is not under an obligation of confidentiality in relation to the information;
d. is developed independently without access to, or use or knowledge of, the confidential information, or
e. is required to be disclosed by operation of law, or court order.
10. Intellectual Property
10.1 All Intellectual Property Rights in the Material produced by the Company in providing to Deliverables vests in the Company
10.2 Except as expressly permitted by a licence granted by the company, the Company’s Material may not be;
a. reproduced or transmitted in any form, or by any means, electronically or mechanically
b. lent, resold, hired out or otherwise circulated.
11. Document Licence
11.1 Unless otherwise provided in the Proposal, the Company grants the Customer a permanent, irrevocable, royalty-free, worldwide, non-exclusive licence to use, reproduce and adapt the documents supplied by the Company only for the purposes of configuration, maintenance and documentation of the Customer’s infrastructure.
12. Independence
12.1 It is the intention of the parties that this Contract is for the provision of services and:
a. neither this Contract nor the provision of the Services shall create a partnership or joint venture between the parties and neither party shall enter into or have authority to enter into any engagement or make any representations or warranties on the other party's behalf, nor seek to otherwise bind or oblige the other party in any way; and
b. neither this Contract nor the provision of the Services are intended to create or imply any employment relationship between the parties.
13. Notices
13.1 Any notice required by these Terms and Conditions to be given by either party shall be in writing and shall be served by sending the same by registered post or recorded delivery to the address of the other party.
14. Severability
14.1 If any provision of these Terms and Conditions is held to be invalid or unenforceable, this will not affect the validity or enforceability of the remaining provisions of these Terms and Conditions.
15. Waiver
15.1 No waiver by the Company of any provision of these Terms and Conditions shall be binding unless it is expressly confirmed in writing by an authorized representative of the Company.
16. Extent of Warranty for Products
16.1 In relation to all Deliverables supplied to the Customer by the Company, the Customer will enjoy the benefit of the relevant manufacturer’s warranty and must follow the warranty procedure set out by the relevant manufacturer.
16.2 The Customer may avail of ‘swap-out cover’ following the first anniversary of Completion where this is offered by the Company. Swap out cover will include replacement devices (or devices or a similar specification). The Manufacturer’s warranty will continue alongside the swap-out cover until it has expired.
17. Insurance
17.1 The Products and Services are entirely at the risk of the Customer from the moment the Products or Services are delivered in accordance with Clause 6.1.
17.2 The Customer must, at its own expense, maintain the Products and Services and insure them for their full reinstatement value for the benefit of the Company against theft, breakdown, fire, water and other risks as from the moment of delivery to the Customer and until title in the Products and Services has passed to the Customer.
18. Limitation of Liability
18.1 Nothing in these terms and conditions will limit or exclude the Company’s or your liability for death or personal injury.
18.2 the Company will not be liable to the Customer in respect of any losses arising out of events beyond our reasonable control.
18.3 The Company accepts no liability for any of the following:
18.3.1 any business losses, such as loss of profits, income, revenue, anticipated savings, business, contracts, goodwill or commercial opportunities;
18.3.2 loss or corruption of any data, database or software;
18.3.2 any special, indirect or consequential loss or damage.
19. Assignment
19.1 Neither party will assign or transfer this Contract or any of its rights or obligations herein, whether in whole or in part without the prior written consent of the other.
20. Complaints
20.1 The Company is committed to providing a quality service to the Customer. However, if the Customer is dissatisfied with any aspect of the Company’s service, any complaints should be raised in writing to the Company’s registered office address within 28 days of receiving any Services.
21. Compliance with the General Data Protection Regulation
21.1 The Company respects your privacy and is committed to protecting your personal data and keeping it safe. It is our aim to be clear about how we collect, process and look after your personal data. We only collect the information that we need or that you agree we can collect, and will never sell your data or share it with a third party without your express authorisation, or if it is required by law.
21.2 Full details can be found in our Privacy Notice which is available on our website which should be read in conjunction with this document.
22. Third Party Rights
22.1 A person who is not a party to this Contract will not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
23. Governing Law
23.1 This Contract shall be governed by and construed in accordance with the laws of Northern Ireland. The courts of Northern Ireland shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning this Contract and any matter arising from it.
24. Termination
24.1 The Company may terminate this Agreement if;
24.1.1 The Customer is in breach of any of its obligations contained in this Agreement
24.1.2 The Customer has entered into liquidation whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets
24.1.3 The Customer has become bankrupt; or
24.1.4 The Customer ceases or threatens to cease to carry on business
24.2 Such termination shall be without prejudice to any rights or claims that the Company may have against you.
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