Terms & Conditions of Business
EFFECTIVE JAN 2014 UNTIL FURTHER NOTICE
1.1 IN THESE TERMS:
The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Contract: the Customer's purchase order and the Supplier's acceptance of it, or the Customer's acceptance of a quotation for Services/and or supply of Goods by the Supplier.
Goods: any goods agreed in the Contract to be supplied to the Customer by the Supplier (including any part or parts of them).
Customer: the person, firm or company who purchases Services and/or Goods from the Supplier.
Customer's Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Deliverables: all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts)
Input Material: all Documents, information and materials provided by the Customer relating to the Services including (without limitation), computer programs, data, reports and specifications.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications
Services: the services to be provided by the Supplier under the Contract as set out in the quotation together with any other services which the Supplier provides, or agrees to provide, to the Customer.
Supplier: The Rack House is a brand of Audacit Limited.
Supplier's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.
Support Ticket: a request for assistance raised by the Customer, either by means of submitting a form at the Supplier's website or by means of contacting the Supplier verbally or via electronic mail and requesting assistance.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer's purchase order, or the raising of a Support Ticket either online or by telephone request, or the Customer's acceptance of a quotation for Services/and or goods by the Supplier, constitutes an offer by the Customer to purchase the Services on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
(a) by a written acknowledgement issued and executed by the Supplier; or
(b) (if earlier) by the Supplier starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
2.4 The quantity and description of the Goods shall be as set out in the Supplier's quotation or acknowledgement of order.
2.5 All samples, descriptive matter, specifications and advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3. COMMENCEMENT AND DURATION
3.1 The Services and /or Goods supplied under the Contract shall be provided by the Supplier to the Customer from the date specified in the quotation.
3.2 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
3.3 Subject to condition 11, the Services supplied under the Contract shall continue to be supplied for the term and, after that, shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than three months' notice.
4.1 The Goods are at the risk of the Customer from the time of delivery. 4.2 Ownership of the Goods shall not pass to the Customer until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
4.3 If the Customer decides prior to delivery to revise its order in respect of the Goods, the Supplier is entitled to charge up to 25% as a restocking/administration fee.
4.4 Where the Customer wishes to return the Goods for whatever reason to the Supplier the Goods must be in their original unopened packaging.
5. SUPPLIER'S OBLIGATIONS
5.1 The Supplier shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with the quotation.
5.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the quotation but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
5.3 Any dates specified by the Supplier for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
6. CUSTOMER'S OBLIGATIONS
6.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer's premises, office accommodation, data and other facilities as required by the Supplier;
(c) provide to the Supplier, in a timely manner, such Input Material and other information as the Supplier may require and ensure that it is accurate in all material respects;
(d) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services;
(e) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer's premises;
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier's Equipment, the use of Input Material and the use of the Customer's Equipment in relation to the Supplier's Equipment.
6.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
6.3 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Customer
(b) the Goods shall be deemed to have been delivered; and
(c) the Supplier may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
6.4 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
6.5 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the last date of supply of the Services, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee[, consultant or subcontractor of the Supplier in the provision of the Services.
7. CHARGES AND PAYMENT
7.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out on the invoice, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both.
7.2 Where Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Supplier's standard fee rates, as set out in a specific quotation or, in the absence of this, as set out on the rate card on this web site.
(b) all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;
(c) the Supplier shall ensure that every individual whom it engages on the Services use its Support Ticket system to record actual and billable time spent on the Services, and the Supplier shall use such Support Tickets to calculate the charges. Where the Supplier has given an estimate of man hours needed to complete the Services in a specific quotation, this figure is a reasonable estimate of the number of man hours needed to complete the services and the Supplier will be entitled to charge the additional hours.
(d) where there is no agreed pre-payment contract, the Supplier shall invoice the Customer in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for each Support Ticket completed, calculated as provided in this condition 7.2.
7.3 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the quotation and shall include expenses, the costs of materials and VAT, where appropriate.
7.4 The parties agree that the Supplier may review and adjust its fees at any time provided that such fees cannot be increased until any pre-payment has been fully utilised at the existing rate. The Supplier will give the Customer written notice of any such increase at least one months before the proposed date of the increase.
7.5 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of receipt to the bank account nominated on each invoice.
7.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
7.7 Time for payment shall be of the essence of the Contract.
7.8 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Supplier terminates the Contract under condition 11.1 this licence shall automatically terminate.
9. CONFIDENTIALITY AND THE SUPPLIER'S PROPERTY
9.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain.
9.2 The Customer may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer's obligations under the Contract; and (b) as may be required by law, court order or any governmental or regulatory authority.
9.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 9.
9.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
9.5 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials and the Supplier's Equipment) shall, at all times, be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.
10. LIMITATION OF LIABILITY
10.1 This condition sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
10.4 Subject to condition 10.2 and condition 10.3
(a) The Supplier shall not be liable for:
(i) loss of profits; or
(ii) loss of contract; or
(iii) loss of corruption of data or information; or
(iv) indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.
10.5 Third party dependencies. Where the Supplier arranges or provides Services to the Customer which are themselves contingent upon other third party suppliers then
(a) the Supplier shall use its best endeavours to act for the Customer but takes no further responsibility for failures, outages, or any other events beyond its reasonable control, and
(b) if the Customer bypasses the Supplier and deals direct with such a third party supplier then the Customer forfeits all rights to expect the Supplier to continue to act on its behalf.
11.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract immediately and without liability to the other if:
(a) no written agreement is in force relating to an on-going pre-paid quarterly contract, and
(b) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
11.2 In the event of an on-going pre-paid quarterly contract being in place, either party may terminate the Contract without liability to the other and for the same reasons as set out in clause 11.1 (b) by giving at least one montn's notice before the next quarterly renewal date, or in the event that there is less than one month of the current quarter left to run, payment of one month's fees calculated pro rata at one third of the previous quarterly fee.
11.3 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall return all of the Supplier's Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.4 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
(a) condition 8;
(b) condition 9;
(c) condition 10;
(d) condition 10, and
(e) condition 2.1
12. FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.1 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
14.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15. ENTIRE AGREEMENT
15.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
15.2 Nothing in this condition shall limit or exclude any liability for fraud.
16.1 The Contract between the Supplier and the Customer shall not be assigned by either party to a third party without the written agreement of both the Customer and the Supplier.
17. RIGHTS OF THIRD PARTIES
17.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.
18. GOVERNING LAW AND JURISDICTION
18.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.