1. General Conditions LINK INFORMATION TECHNOLOGY LIMITED GENERAL CONDITIONS Any proposal is submitted on the understanding that its use will be confined to the relevant people and that no part of the contents shall be submitted or disclosed to a third party without the prior written consent of Link Information Technology Ltd., whose property it remains. Successful application, operation and management of I.T. products and services are the responsibility of the user. Examples of these responsibilities are: confirming the validity of the proposed equipment and services: developing appropriate systems procedures: incorporating procedures to safeguard data from unauthorised or accidental modification, destruction, or disclosure: incorporating in the design, sufficient checkpoints, balances and controls necessary to satisfy accuracy, restart and audit requirements: establishing adequate contingency plans: preparing documentation and providing qualified personnel to obtain the desired results. The scale of our charges and related expenses for our supplies, or services is provided on the understanding that it will remain valid for sixty days from the date of submission unless specifically stated otherwise. Except as stated otherwise in the proposal, all charges are invoiced weekly and are payable together with Value Added Tax on presentation of invoice. Ownership of goods and the right to use software only passes to the Customer when the Company has received payment in full in cash or cleared funds for those goods or software and any other goods supplied by the Company to the Customer for which payment is then due.
All surveys, forecasts and recommendations in any proposal, report or letter are made in good faith and on the basis of information before us at the time. Their achievement must depend among other things on the effective co-operation of the Client and the Client's staff. In consequence, no statement in any proposal, report or letter is to be deemed to be in any circumstances a representation, undertaking, warranty or contractual condition.
We shall not be liable to the Client for any losses which are not reasonably foreseeable on acceptance of the proposal or for any indirect or consequential losses including loss of revenue, anticipated profits and claims by third parties.
All our consultants and staff are under special contract which protects the client against the divulging of confidential information. Our consultants and staff are also under agreement not to seek or accept employment with the Client, and it is a condition of the engagement of our Company that neither the Client nor any firm or Company associated with the Client will offer employment to any of our consultants or employees concerned in this assignment. In the event that a Client should employ a member of our staff either currently employed, or within a period of 2 years of termination, either on a permanent, temporary, or contract basis, the Client agrees to pay 50% of the final annualised salary, plus our costs of recruiting a suitable replacement member of staff.
1.1. The Company only does business with Customers under these Conditions of Sale. No variations of these Conditions of Sale will be binding on the Company unless agreed in writing by the Company and signed by a representative of the Company authorised for that purpose.
1.2. No contract is made with Customer until the goods have been despatched by the Company and a despatch note issued to the Customer.
1.3. All Customer purchase orders must be submitted or confirmed in writing. The Company is not obliged to accept any purchase order.
1.4. The Customer must decide before ordering if the goods are suitable for the Customer's needs.
2.1. Any price stated by the Company in any catalogue, website, sales literature, proposals, price lists or other documentation is valid for 60 days.
2.2. The price for any goods stated by the Company is exclusive of any applicable VAT and carriage, postage and packaging and any other duties taxes applicable.
3.1. All goods purchased must be paid for in full by the Customer within thirty days of the date of the Company's invoice.
3.2. Under the Late Payment of Commercial Debts Regulations 2002, the Company can exercise its statutory right to charge interest and an administration charge on all invoices overdue. This will be at a rate of 4% above the HSBC Base Rate, on a daily basis, for all sums outstanding, plus an administration fee of £30.00.
3.3. Non-account customers are required to pay the Company in full in advance for any goods ordered by debit card or credit card . The goods will be despatched to the Customer when the payment has been authorised.
4.1. The Company may at its discretion offer the Customer credit, subject to the Company being satisfied as to the Customer's credit worthiness. The Customer acknowledges that the Company may carry out status enquiry checks on the Customer.
4.2. Credit facilities may be withdrawn at any time at the Company's discretion.
5.1. The Customer is liable for any costs incurred by the Company in relation to carriage, postage and packing and any other applicable duties, taxes and charges.
5.2. Standard delivery is to suitable ground floor reception or stores areas. The Customer must notify the Company in advance if there are any special delivery requirements - there will be an additional charge.
5.3. The Company will use its reasonable endeavours to deliver the goods to the Customer's premises by the delivery date estimated by the Company. The delivery date is not guaranteed nor is it of the essence of the Contract. In no circumstances will the Company be liable to the Customer for any losses, damages or charges incurred by the Customer due to the late delivery of the goods.
5.4. The Customer must inspect the goods immediately upon delivery and in all cases must inform the Company in writing within 5 (five) days of delivery of any damage, shortages or non-delivery of the goods.
5.5. Where the goods are being purchased by a business for use in the business and are to be delivered in installments each delivery will constitute a separate contract.
5.6. If the Customer fails to take delivery of the goods or fails to give the Company adequate delivery instructions, the Company may store the goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage or sell the goods at the best price readily obtainable and charge the Customer for any shortfall.
6.1. Risk of damage to or loss of the goods will pass to the Customer on prior arranged collection or on delivery to the Customer's premises.
7.1. Ownership of goods and the right to use any supplied software, only passes to the Customer when the Company has received payment in full in cash or cleared funds for those goods, services and software, and any other goods services and software supplied by the Company to the Customer for which payment is then due.
7.2. Until such time as ownership of the goods passes to the Customer the Customer must keep the goods separate from the Customer's goods and those of any third parties and properly stored, protected and insured and identified as the Company's property. The Company will also be entitled to require the Customer to deliver up the goods to the Company. If the Customer fails to do so, the Customer must permit the Company its agents or representatives to enter its premises or any premises of any third party where the goods are stored and repossess them.
8.1. No purchase order can be cancelled by the Customer, except with the written agreement of a representative of the Company authorised for that purpose.
9.1. Goods are not sold on a trial basis. Where goods are not faulty but the Customer wishes to return them, the goods can only be returned to the Company if fully re-saleable and subject to a restocking charge. The restocking charge will be 15% of the purchase price of the goods or £20, whichever is the greater. This charge includes the Company's reasonable costs of carriage, postage, and packaging.
9.2. A Returns Authorisation Number must be obtained by the Customer from the Customer Service department before any goods can be returned. The Company will not accept goods returned without a Returns Authorisation Number.
9.3. The Customer must attach a return address label (found on the reverse of the despatch note) to the outer brown cardboard box and the Company will arrange for it to be collected.
9.4. The goods must be returned with the manufacturer's original packaging not damaged or defaced. The goods must be returned in their entirety including all disks, manuals and cables.
9.5. The return of faulty goods is subject strictly to individual manufacturers' "Dead On Arrival" (DOA) policies. Details of these can be obtained by the Customer by contacting the Company's Customer Service department.
9.6. Where a Customer notifies the Company of a defect in the goods within the time provided for in the applicable manufacturer's DOA policy, and that defect is subsequently verified by the Company's technical inspectors, the Company will replace the Goods or refund the monies paid by the Customer for the goods.
9.7. 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.
9.8. 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-Company basis. Some manufacturers have a day one back to base policy. All parts and labour charges will be waived. 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 informed by the Company's Customer Service department. If the original packaging is not available, a stout carton must be used with high density foam providing at least 150mm clearance surrounding the entire product so as to ensure safe transit and ease of identification.
9.9. The Company will not 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. Software licences cannot be exchanged, returned or refunded.
9.10. Goods can only be returned to the Company using a carrier approved by the Company. Where the Customer uses an unapproved carrier the Customer will be liable for all costs, losses, damages or other charges incurred by the Company in relation to such use.
9.11. Risk in any goods that the Customer is returning to the Company remains with the Customer until the goods have been collected by the Company's approved carrier.
9.12. Before returning any goods to the Company it is the Customer's responsibility to back up or save any data. The Company accepts no liability for the loss of any data.
10.1. Where goods are covered by a manufacturer's warranty, the Customer will be responsible for contacting and returning any registration or warranty cards to the relevant manufacturer.
10.2. The Company is not responsible for any acts of the manufacturer or its agents including (without limitation) any failure by the manufacturer to replace or repair any of the goods which are the subject of the manufacturer's warranty.
10.3. All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law, except where goods are sold to a person dealing as a consumer as defined in the Unfair Contract Terms Act 1977.
10.4. Please note that where goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Customer are not affected by these Conditions.
10.5. The Company will not be liable to the Customer by reason of any representation (unless fraudulent) or any implied warranty, condition or other term or any statutory or common law obligation, except in respect of death or personal injury caused by the Company's negligence
10.6. The Company will not be liable or for any indirect, special or consequential losses or damages (whether for loss of profit or otherwise) costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees, agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the Customer.
10.7 Where our services include the design, construction, or deployment of online, or printed content, the client must ensure that any fees, or royalties are paid in respect to any third party intellectual property, images, or content used therein. The Company will not be responsible for claims in regard to usage fees, royalties, or penalties for infringement of Intellectual Property rights.
11.1. The Company will not be liable to the Customer by reason of any delay in performing, or any failure to perform, any of the Company's obligations in relation to the Goods, where the delay or failure was due to any cause beyond the Company's reasonable control.
12.1. If the Customer is insolvent or the Company reasonably understands that the Customer is about to become insolvent, the Company will be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer. If the goods have been delivered and not paid for the price of the goods will become due and payable immediately despite any previous agreement or arrangements to the contrary.
13.1. The Customer will be responsible for obtaining all licences for the export or import of the goods and any other licences required for the delivery of the goods to a destination outside the United Kingdom.
Our aim is at all times to deliver the best quality service and so we have tried to make our Terms of Business both fair and easy to understand.
We would particularly like to draw your attention to our User Rules in clause 5 below, please read them carefully. They deal with system Usernames, Passwords and TCP/IP and Email Addresses and contain certain limitations on the use of the Service, for example prohibiting the transmission of anything pornographic, defamatory or in breach of intellectual property rights.
1.1 After acceptance of your Order we will work with you to agree a target RFS date.
1.2 We will endeavour to deliver the Service (including delivering, installing, and testing any equipment or software specified in the Order) by the agreed target date, but this will be an estimate only and we do not guarantee it.
1.3 You may use part of the Service before we notify you that the whole Service is ready for service, provided we first agree in writing the terms on which you may do so.
1.4 We are not responsible for failure to deliver goods or provide services contracted by you with third parties even where these may be essential to your ability to use any goods or Service ordered from us. For example if you order a circuit or router from another vendor, with the intention of connecting it to one or more of our networks, if your supplier failed to deliver on the due dates, or failed to provide a working circuit, we cannot be held responsible.
2.1 We will use reasonable skill and care in delivering the Service, and will ensure that any equipment we provide will be of satisfactory quality and fit for the purposes of the Service.
2.2 We will ensure that any software we provide will be of satisfactory quality and reasonably fit for the purposes of the Service though your use of it will be strictly subject to the terms of the license provided with it.
2.3 You agree to let us have all the information and assistance necessary to enable us to provide the Service (and undertake that all information already provided is correct), to comply with these Terms of Business and to pay all amounts owing on the due date.
3.1 Whilst we may assist you in your choosing the Service, you will be solely responsible for assessing your own needs, how your chosen Service will relate to them and how you will use the Service you choose. We give no guarantee as to the value or cost of the Service to you.
4.1 The Service will be available for not less than 99.5% of each calendar month, where the Service originates from us and is delivered to you on a single circuit; and for not less than 99.9% of each calendar month in all other cases. Availability will be calculated and reported in accordance with the rules set out in the Appendix.
4.2 If in any calendar month we do not meet this standard of availability, we will compensate you. The amount of compensation will be determined in accordance with the rules set out in the Appendix.
4.3 We will provide this compensation by making further services or discounts available to you up to the amount of compensation at the applicable rate. This compensation will be the limit of our liability for the non-availability of the Service.
5.1 You agree to use the Service only in accordance with the User Rules set out in this clause.
5.2 You agree to indemnify us against any loss or expense arising from a third party claim or otherwise that we may suffer in connection with any use of the Service in breach of the User Rules. You recognise we have no responsibility to monitor compliance with the User Rules.
5.3 You agree not to use the Service for the purposes of;
a. the collection/distribution of obscene or pornographic materials
b. the distribution of unsolicited Email
c. the collection/distribution of any material which infringes the intellectual property rights of any person.
d. any activity contrary to the Misuse of Computers act 1987
e. The collection/distribution of defamatory materials.
5.4 If this agreement is terminated or the Service is suspended you agree to cease using (delete from all computers) all and any TCP/IP addresses we may have provided to you within 7 days.
5.5 In the event of this agreement being terminated or the Service being suspended through breach of these Terms of Business we may at our discretion though not unreasonably withhold any Domain Name or names we may have registered on your behalf.
5.6 In the event of this agreement being terminated or the Service being suspended we may at our discretion though not unreasonably withhold access to all and any system Usernames Passwords and Email addresses and data of all or any type.
6.1 Our charges are as set out in the Order and are payable at the times and in the manner set out in the Order. They are exclusive of value added or any similar taxes which will be payable by you in addition to and at the same time as the relevant charge/s.
6.2 Unless the Order provides otherwise, the recurring charges will be fixed for the first twelve months of the Agreement. After that we will have the right to increase or decrease them on giving you 60 days notice. If we do so, you may terminate the Agreement by giving not less than 30 days notice to us expiring on the date on which the increase would have taken place.
6.3 We will provide itemised details of usage on which any charge is based if you ask for this in advance, but we may require an additional charge to cover this extra service.
6.4 If payment of any sums due under the Agreement is not received in accordance with the terms set out in the Order, we may charge interest, at 4% above the base rate of HSBC Bank Plc (or its successor) on a daily basis, on the outstanding sums, calculated from when the payment is due until full payment is received by us, whether before or after judgement.
6.5 We reserve the right to suspend service where payment is outstanding upon the client's account for more than 30 days in the case of a credit account, or immediately if on a pre-payment basis.
6.6 Where services are suspended in accordance with clause 6.5, we reserve the right to charge an advance re-connection fee of £35.00 to reinstate services.
7.1 This paragraph applies where you intend to resell the Services to provide Internet access to your own customers or subscribers.
7.2 If your connection is overloaded we may require you to upgrade the Service by giving you notice to do so. A connection is overloaded when the average monthly volume of traffic exceeds 65% of the rated connection bandwidth. All our connections are sampled every five minutes.
7.3 On receiving such a notice from us, you will upgrade the Service as soon as reasonably practicable, at your cost at the then tariff rate offered by us. The upgrade must be big enough to prevent the circumstances set out in paragraph 7.2 (above) from recurring within 3 months from the date at which the overload was detected.
8.1 Either party may terminate the Agreement:
8.1.1 unless and until terminated in accordance with this clause, the agreement shall continue on an annual rolling basis;
8.1.2 by notice, if the other has a resolution passed or a petition is presented to wind it up (otherwise than for a solvent reconstruction or amalgamation), or has a receiver appointed of the whole or any part of its assets, or is subject to any bankruptcy, insolvency, administration, sequestration or similar proceedings;
8.1.3 by notice, if a target RFS date is not agreed within 60 days of our acceptance of your Order; or
8.1.4 by notice, if we fail to deliver the Service by 30 days after the agreed target RFS date; or
8.1.5 by not less than 90 days prior written notice, expiring on or after the end of the minimum period specified in the Order (or if no minimum period is specified, after 12 months from the date the service is ready for service).
8.2 We may additionally terminate the Agreement or suspend the Service without notice if:
8.2.1 you fail to make a payment to us on the due date or breach any material term of the Agreement;
8.2.2 you do, or allow anything to be done, which affects the performance or availability of the Service or any network to which you are connected; or
8.2.3 any credit limit set out in the Order Form is exceeded.
Suspension of Service/s will not affect our right to terminate the Agreement nor your continuing obligation to pay our charges.
8.3 You may additionally terminate the Agreement by notice if we fail to reinstate the Service following a continuous period of non-availability (determined as set out in the Appendix) of 48 hours.
8.4 Where the Agreement is terminated under paragraphs 8.1.2 or 8.1.3, we will refund any payment made by you, and neither of us shall have any further obligation to the other. In all other cases, no refund will be made and you will be liable to continue making payments due until the earliest date you would be entitled to terminate the Agreement. Termination will not affect any pre-existing rights nor any remedy that would otherwise have been available to us.
9.1 Nothing in the Agreement limits liability for death or personal injury caused by negligence, or fraudulent mis-statement.
9.2 We will not be liable to you for any indirect loss, whether it arises from negligence, breach of contract or otherwise. "Indirect loss" includes (but is not limited to) loss of profits, business, revenue, goodwill or anticipated savings, loss of use or value of any equipment or software, wasted management or other time, and loss resulting from corruption of data.
9.3 We will be liable to you for any direct loss arising from our negligence or breach of contract. "Direct loss" includes (but is not limited to) the cost of repairing or replacing any property that suffers physical damage by reason of any action by us.
9.4 Subject to clause 9.1, the total liability to you shall not in any circumstances exceed £1m sterling.
9.5 We will not be liable for anything resulting from a force majeure event. A force majeure event is any event beyond our reasonable control including (but not limited to) acts of God, acts of government or the failure of any telecommunications provider used by us in the provision of the service.
10.1 The Agreement represents the complete agreement between us relating to the Service and supersedes any other agreement or understanding, oral or written, including any of your standard conditions. Save to the extent repeated in the Agreement any representations or undertakings by us, express or implied, are withdrawn.
10.2 Save in respect of the User Rules, the Agreement may be altered only by a subsequent written agreement signed by each of us. Any indulgence or failure by us to exercise a right shall not be deemed to be a waiver of any of our rights.
10.3 Clause headings are there for convenience only and are to be disregarded in interpreting the Agreement. If there is any conflict between these Terms of Business and the Order, these Terms will prevail.
11.1 You may assign the Agreement only with our prior written consent, which will not be unreasonably withheld.
11.2 We may assign the Agreement or delegate our obligations under it.
12.1 If a disagreement arises we will endeavour to resolve it amicably by discussion. In an appropriate case we may suggest mediation as a dispute resolution procedure, but if it is necessary to go to court the English Courts are to have exclusive jurisdiction. You agree to be bound by any applicable dispute resolution procedure of any telecommunications operator providing a related service.
12.2 The Agreement is governed exclusively by English law.
13.1 Notices under the Agreement must be sent by first class post or (with a hard copy confirmation sent that day by post) by fax or e-mail, or by hand, to the appropriate address set out in the Order or such other address as the addressee may by written notice have directed.
14.1 "Order" means our printed order form as completed and signed by you.
14.2 "Agreement" means the agreement constituted by these Terms of Business (including the Appendix) , the Order, any documents referred to in the Order and our written acceptance of your Order.
14.3 "User Rules" means our standard User Rules as detailed in Clause 5, and as amended by us from time to time by written notice to you.
14.4 Capitalised words also used in the Order shall have the meanings given to them in the Order.
14.5 "Service" means the provision of the goods and services as set out in the Order.
"Availability" means the availability of our network demonstrated by means of either a ping or traceroute program.
"Business Hours" means 09.30 a.m. to 5.30 p.m. on a day other than a Saturday, Sunday, bank or other public holiday in England and Wales.
"Downtime" means in respect of any month the total time during which the Service is not Available (other than as a result of planned Outages).
"Outage" means any period during which any user cannot process an application transaction or send or receive e-mails utilising the Service.
"Planned Outage" means any period during which any user cannot process an application transaction or send or receive e-mails utilising the Service caused by work for the purpose of maintenance or support.
"Service Minutes" means minutes of connectivity to LINK INFORMATION TECHNOLOGY LTD services.
2.1 Planned outages. All work for the purpose maintenance or support as part of Planned Outages will take place outside Business Hours. Planned Outages will be notified to you wherever possible on 5 days prior notice unless otherwise agreed. We shall wherever possible ensure that there are no more than 2 planned Outages each month.
2.2 Availability. Availability is calculated at the end of each month in accordance with the following formula:
"A": means the Availability of the Service (expressed as a percentage).
"D": means Downtime in the respective month - expressed in minutes.
"T": means the total number of Service Minutes in the respective month.
2.3 Calculation of Downtime. Downtime is calculated from the time of notification of a fault by either you or us, and ends when the Service is restored to full working order as determined and certified by us. However, Downtime is to be disregarded to the extent it is attributable to your failing to keep equipment in standard office environment levels of humidity and temperature, or to any other abuse, misuse or modification of equipment or software by you.
4.1 We are responsible for recording Availability, planned and unplanned Outages and fault resolution time scales. We shall submit a report to your IT Manager as requested, to include the following information:
4.1.2 Availability and planned and unplanned Outages in the preceding month; and
4.1.2 progress made in respect of the fault resolution process including whether contractual time scales for providing work arounds or fixes have been met.
4.2 At the time of notification of a fault, we will assign a priority to the fault in accordance with the priority classifications set out at below, by agreement with you. If there is any dispute as to the classification of a fault the matter shall be escalated immediately to the following personnel.
NAME POSITION TELEPHONE NO.
R Antrobus Operations Director 01925 607313
N Marshall Technical Director 01925 607314
5.1 Problems will be classified by us in accordance with the following table:-
PRIORITY CLASSIFICATION DESCRIPTION
Priority 1 Faults System non-functional with high impact on operations.
Priority 2 Faults System partially usable with medium impact on operations, or a Priority 1 Fault to which a temporary work around has been applied.
Priority 3 Faults Minor problems with very low impact on operations.
Priority 4 Faults Documentation errors.
6.1 We will initially attempt to qualify the suspected fault as an actual fault and will require you to perform checks and tests to further isolate the suspected fault at this time and at other times during the resolution process.
6.2 Where further checks are inconclusive or are liable to affect live operation, we shall attempt to replicate and test the suspected fault internally.
6.3 We shall fix or provide a work around to any problem that will not affect the functionality or performance or Availability of the Service in the following time scales:-
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