PART C – GENERAL CONTRACT TERMS AND CONDITIONS
These General Contract Terms and Conditions are version 1.12, dated 27/07/2017
Definitions and Interpretation
In this Agreement the following definitions shall have the following meanings:
HWT’s then prevailing charges for work undertaken on a time and materials basis;
Part A, Part B , this Part C and any Specification attached;
All information relating to either HWT or the Customer (including but not limited to information in respect of the Services (or any of them)) which might fairly be considered to be of a confidential nature;
The delivery date (if any) for the supply of the Equipment as set out on the Front Sheet;
Non-refundable deposit as set out on the Front Sheet;
Such Hardware and/or Software as identified in Part B;
The computer hardware listed in Part B;
The provision of 8:30am to 17:00pm (Monday to Friday excluding public holidays) help desk support for basic advice on the use and operation of the Hardware and subject to the limitations set out in this Part C and section 3 of Part B;
All trademarks, service marks, patents, know-how, copyright (including but not limited to copyright deriving from technical specifications, installation guides, help guides, project requirements and analysis, drawings and all source code formats, templates and routines), design rights, registered designs, database rights together with any applications to register any of the same anywhere in the world;
The front page of the agreement, headed general contract details;
The section of the Agreement headed Part B “Details of Services to be provided”;
These general contract terms and conditions;
The Customer and HWT;
The costs set out in Part A and payable in accordance with this Agreement;
The services required by the Customer to be undertaken by HWT details of which are set out on Part A and Part B;
The address where the Software and/or Hardware is to be delivered as detailed in Part B;
The software licenses governing the use of the Software;
The provision of 8:30am to 17:00pm (Monday to Friday excluding public holidays) help desk support for basic advice on the use and operation of the Software and subject to the limitations set out in this Part C and section 4 of Part B;
The specification (if any) agreed by the Parties in respect of the Services a copy of which is attached to this Agreement and initialed by the Parties for the purpose of identification;
The charges as set out in Part A and clause 8 below to be paid by the Customer for the provision of support for the Software and/or Hardware;
The Hardware Support and the Software Support;
The warranties provided by the authorized suppliers/manufacturers of the Hardware and the licensor of the Software copies of which have been supplied to the Customer.
1.2 In the event of conflict between Part B and this Part C then this Part C shall prevail.
1.3 All references in this Agreement to the singular shall mean the plural and vice versa, all references to person shall include companies, partnerships and other organisations and all references to the masculine shall include the feminine and neuter and vice versa.
1.4 These contract terms and conditions may change from time to time. In the event that these Terms and Conditions change, HWT will advise you on your next available invoice within 3 months of the date of the change, but if no invoice is raised in this period, then you agree that it is your responsibility to check for any changes to these Terms and conditions using the version numbers as stated in your contract and at the top of these Terms.
2. HWT’s Obligations and Rights
2.1 Subject to this Agreement, HWT shall use its reasonable endeavours to:
(a) procure the Equipment and deliver it to the Site; and
(b) carry out the Services.
2.2 Any stated Delivery Date is an estimate only and time for delivery shall not be of the essence unless expressly agreed by HWT in writing.
2.3 HWT may, in its sole discretion, subcontract at any time any or all of its obligations under this Agreement to any third party/ies.
3. Customer’s Obligations
3.1 The Customer shall complete in a timely manner the obligations set out in this Agreement;
3.2 The Customer acknowledges that HWT’s ability to perform its obligations under this Agreement is dependent upon the Customer’s full and timely co-operation with HWT and the accuracy and completeness of any information the Customer provides to HWT. The Customer shall without limitation:
(a) provide free, unrestricted and uninterrupted access to the Site, and any information, documentation, facilities, working space and personnel deemed necessary by HWT to enable HWT to perform its obligations;
(b) forthwith upon request by HWT, provide HWT with originals of all permits, consents and/or other authorisations necessary or desirable to enable HWT and/or any of its sub-contractors to perform HWT’s obligations hereunder;
(c) provide HWT with written identification of any overhead, surface or underground wire, cable, pipe, conduit, channel, obstruction and/or impediment which may restrict, prevent and/or affect the performance of any of HWT’s obligations under this Agreement, and the Customer shall if requested by HWT (at the Customer’s sole cost and expense) promptly mark, remove and/or divert the same;
(d) appoint one or more representatives (as reasonably required by HWT) in connection with the Services and procure that such representative(s) shall provide professional and prompt liaison with HWT and possess the necessary expertise and authority to commit the Customer;
(e) prepare the Site in accordance with any requirements stipulated by HWT in writing;
(f) fully comply with the terms of any Software Licence;
(g) forthwith notify HWT of any problem, error or complaint in respect of the Equipment and the Services giving full details of such problem, error or complaint.
3.3 The Customer shall be solely responsible for maintaining an external procedure for reconstruction of lost or altered files, data and/or programs to the extent deemed necessary by the Customer, and for actually reconstructing any and all such materials.
3.4 The Customer shall be solely responsible for the obtaining of and any cost and expense of obtaining all consents, permits, authorities and/or approvals that may be necessary or desirable to enable HWT and/or any of its subcontractors to fulfil HWT’s obligations hereunder.
3.5 The Customer shall be liable for any delays or failures to the implementation or carrying out of the Services caused by the acts or omissions of the Customer. HWT shall be entitled to levy Additional Charges against the Customer for any and all costs, expenses and/or losses of any kind whatsoever suffered or incurred by HWT arising out of or in connection with any such delay(s).
3.6 Save as required by law the Customer shall indemnify HWT and keep HWT at all times fully and effectively indemnified against any and all losses, damages, liabilities, demands, costs and/or expenses of any kind whatsoever suffered or incurred by HWT arising out of or in connection with any breach by the Customer of any of its obligations under this Agreement.
4. Price and Payment
4.1 The Price includes the cost of delivery and installation of the Equipment to the Site.
4.2 The Price does not include value added tax payable in respect of the Services, Equipment and any Additional Charge which shall be payable by the Customer in addition and in the manner and at the rate from time to time prescribed by law.
4.3 Payment of the Price (less the Deposit) together with value added tax on it shall be paid by no later than the appropriate payment date as set out on the Front Sheet or within 30 days after the receipt by the Customer of appropriate invoices whichever is the earlier. For the avoidance of doubt, HWT shall not be obliged to carry out any of the Services if the Price (or any part of it) remains unpaid after its due date for payment.
4.4 HWT reserves the right to charge the Customer interest in respect of the late payment of any sum due under this Agreement (as well after as before judgment) at the rate of 2 per cent. per annum above the base rate from time to time of Barclays Bank plc from the due date until payment.
5. Title to and risk in the Equipment and Services
5.1 Title to the Hardware shall not pass to the Customer until the date that the Price for the Services and value added tax thereon has been paid in full to HWT. Title in the Software shall remain with the licensor (or such party as may be identified in the Software Licence).
5.2 If either:
(a) the Customer fails to effect payment in full of all sums due hereunder by the due date; or
(b) prior to the said due date the Customer enters into liquidation, bankruptcy or other insolvency procedure, whether compulsorily or voluntarily, other than for the purposes of reconstruction or amalgamation.
then HWT (without prejudice to any other legal remedies it may have) shall at any time thereafter be entitled to enter upon the Site on notice to the Customer and remove the Equipment.
5.3 All IPR in any work produced by HWT (including without limitation any documentation, manuals, instructions guides and any Specification) shall remain vested in HWT.
5.4 Subject to anything to the contrary in the Software Licence risk in the Equipment shall pass to the Customer upon the delivery of the Equipment.
6. Supply of Equipment
6.1 HWT shall supply, or use its reasonable endeavours to procure on behalf of the Customer , the Equipment.
6.2 Subject to clause 8 the Parties hereby acknowledge and agree that (save as expressly set out in this Agreement) the Customer’s contractual relationship with respect to such Equipment shall be with the relevant third party and not with HWT.
6.3 Any Software will be licensed to the Customer and supplied by the relevant licensor in accordance with the licensor’s standard terms and conditions of trading from time to time. Any Hardware will be supplied by the relevant supplier in accordance with the supplier’s standard terms and conditions of trading from time to time.
6.4 HWT’s sole responsibility under this Agreement in respect of any Equipment shall be limited to procuring on behalf of the Customer the supply of such Equipment to the Customer by the appropriate licensor/supplier in accordance with this clause 6.
7.1 If required, HWT shall install the Equipment (or any part of it) at the Site. Unless otherwise agreed by HWT, HWT shall not be obliged to install the Equipment (or any part of it) at any other location other than the Site.
7.2 Acceptance of the Equipment shall take place if installation is:
(a) not required by the Customer, then when the Equipment is delivered to the Site; or
(b) required when HWT reasonably believes that the Equipment is properly installed at the Site and that it is functioning materially in accordance with the Specification and any supporting documentation.
8.1 HWT shall be entitled to increase the Support Charges on giving the Customer no less than three months notice in writing.
8.2 Unless specified as being an fixed term in Part A of this agreement, the services in this agreement will continue for a period of one year from the date of this Agreement. Unless specified as a fixed term in Part A, this agreement shall (subject to clause 9) automatically renew for a further period of one year (at revised renewal rates provided within 1 month of renewal date, unless terminated by either Party on giving no less than one months notice in writing to the other prior to the date of renewal.
8.3 For the avoidance of doubt, in the event that the Customer has elected for limited monthly hours support then any unused hours at the end of the month shall NOT be carried over to subsequent months and the Customer shall not be entitled to any refund or credit for such unused hours.
8.4 HWT will use its reasonable endeavours to deal with Support in a timely and proficient manner.
8.5 Unless specified as a service within Parts A and B of the contract, HWT will not keep any form of asset register for the Customer. Unless specifically included in the contract, this will remain the Customer’s responsibility at all times.
8.6 Calls made to HW Technology Ltd may be recorded or monitored for record keeping, training or quality assurance purposes. By using the telephone services as provided by HW Technology Ltd you are providing consent for HW Technology to record such calls.
9. Termination and Suspension
9.1 HWT may terminate this Agreement (in respect of all or any of the Services) immediately and without notice if:
(a) subject to clause 9.1 (c) the Customer breaches any of its obligations under this Agreement and if capable of remedy fails to remedy within 5 days of receipt of notice in writing from HWT requiring it to do so;
(b) the Customer becomes insolvent or unable to pay its debts, bankrupt or placed in the hands of a receiver or administrator or wound up.
(c) the Customer breaches any of the terms of the Software Licence.
(d) there is a clear breakdown of the relationship
(e) advice provided by HWT that is fundamentally central to the services is not accepted by the client.
9.2 In the event of termination of this Agreement for whatever reason:
(a) the Customer will pay HWT all sums outstanding up to the date of termination; and
(b) both Parties will continue to respect and uphold all confidentiality and IPR obligations.
9.3 HWT reserves the right to suspend some or all of the Services forthwith if:
(a) it has reason to believe that the Customer is misusing the Services (or any of them);
(b) the Customer breaches the Software Licence (or any of them);
(c) it is required to do so by law;
(d) the Customer should fail to pay any part of the Price and/or Additional Charges by the due date.
10. Confidential Information.
10.1 Each Party will not use the other Party’s Confidential Information other than for the purposes provided in this Agreement and will keep in confidence the other Party’s Confidential Information made available to it; provided, however, that such restriction on disclosure shall not apply to any information that:
(a) is in the public domain through no fault of the Party receiving the disclosure;
(b) was known to the receiving Party prior to disclosure by the disclosing Party;
(c) is or was disclosed to the receiving Party by a third party that was not under similar confidentiality provisions; or
(d) is required to be disclosed by applicable law order of any governmental authority of competent jurisdiction .
10.2 Each Party shall be responsible for its own employees with respect to ensuring that no Confidential Information will be disclosed.
10.3 HWT do not use encrypted email unless specifically enabled. The Customer understands and accepts the risks associated with communication via unencrypted email.
10.4 The Customer understands that it is their responsibility to identify information that they consider confidential and inform HWT of this. Information identified as confidential to HWT will NOT be sent over an unencrypted connection, either via email or other service.
11. Representations, Warranties and Limitations.
11.1 This clause 11 and clause 12 sets out HWT’s entire liability to the Customer and all other liability is hereby excluded.
11.2 HWT shall be liable to the Customer in respect of damage to the tangible property of the Customer resulting from the negligence of HWT or its employees, agents and subcontractors subject to a aggregate maximum of the monies paid by the Customer in respect of the Equipment.
11.3 HWT warrants that it will carry out the Services materially as described in any Specification.
11.4 HWT shall perform the Services with reasonable care and skill.
11.5 Save as aforesaid HWT do not warrant the Services (or any of them) against failure of performance due to failure of Equipment or communication systems. HWT disclaim and the Customer waives all other warranties, express or implied, with respect to the Services, arising by law or otherwise, including, without limitation any implied warranty of satisfactory quality, fitness for a particular purpose and any obligation, liability, right, remedy, claim in tort, notwithstanding any fault, negligence (but excluding fraudulent misrepresentation), strict liability or product liability of us (whether express or implied).
11.6 HWT shall not have any liability to the Customer in respect of any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise), loss of profits, loss of anticipated savings, loss of business, loss of goodwill, loss or use or downtime, loss of or corruption to data or other information, any indirect, or consequential loss or damage or otherwise.
11.7 HWT shall have no liability for breach of warranty under this clause 11 and/or otherwise for breach of this Agreement if such breach arises directly or indirectly out of or in connection with the following:
(a) any unauthorised, improper, incomplete and/or inadequate maintenance, use alteration and/or calibration of any Equipment by the Customer and/or any third party;
(b) any failure by the Customer and/or any third party to comply with any applicable Specification, documentation, written instructions or manuals in respect of the Equipment and/or the Services.
11.8 For the avoidance of doubt and without prejudice to the generality of the foregoing, HWT gives no warranty that:
(a) the operation of the whole or any part of the Equipment will be uninterrupted or error free;
(b) the Equipment will (in whole or in part) be compatible with future HWT product(s), HWT services and/or with any third party product(s), services and/or system(s);
(c) any Software will operate in hardware and/or software combinations selected by Customer;
(d) as to the integrity or accuracy of any data or information transferred by HWT to the Equipment. For the avoidance of doubt it is the responsibility of the Customer to back-up any information or data that is to be transferred on to the Equipment and to check the accuracy and integrity of such information or date once it has been transferred.
11.9 Nothing in this Agreement shall operate to exclude either Parties liability for death or personal injury or fraudulent misrepresentation.
12. Remedies and Indemnification
12.1 The Customer acknowledges that the following provision reflects a fair allocation of risk. Save as required by law or expressly agreed in this Part C the Customer’s exclusive remedy for HWT’s default under this Agreement shall be to obtain the repair, replacement or correction of the defective Services to the extent warranted under this Agreement. If such remedy is not economically or technically feasible or effective, then the Customer may obtain an equitable partial or full credit or refund of amounts paid with respect to the defective Services, save that in no event shall HWT be liable for any amount in excess of the amount paid by the Customer to HWT for the Services during the twelve months (12) prior to the event giving rise to the alleged claim unless agreed in writing by HWT.
12.2 The Customer agrees that HWT are not liable under any circumstances for any delay, error or problem caused by any act or omission by the Customer and/or its subcontractors. HWT shall be entitled to levy Additional Charges for all reasonable expenses incurred as a consequence of such acts or omissions.
The waiver by either Party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit or waive either Party’s rights thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
14.1 Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient when delivered:
(a) forty eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid; or
(b) forthwith upon receiving confirmation from the receiving Party either by facsimile, e-mail or by post.
15. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the successors and assignees of the Parties. HWT may assign its rights or obligations hereunder at anytime.
16. Governing Law and Jurisdiction
This Agreement is governed by the laws of England and Wales and the Parties submit to the exclusive jurisdiction of the English Courts.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each Party as close as possible to that under the provision rendered unenforceable.
18. Entire Agreement
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and all prior agreements with respect thereto are superceded. No amendment or modification hereof shall be binding unless in writing and duly executed by both Parties.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
20. Third Party Rights
Except as otherwise expressly stated herein, nothing in this Agreement confers any rights on any person (other than the parties hereto) pursuant to the Contracts (Rights of Third Parties) Act 1999.
END OF TERMS AND CONDITIONS