1          Definitions

 

In these conditions:

 

1.1       ‘We’ and ‘us’ means EXS IT Services Limited, of Cecil Francis Business Park, 8 Bear Lane, Pinchbeck, Lincolnshire PE11 3XE

 

1.2       ‘You’ and ‘your’ means the person (which includes a company, school, college or other business/establishment) contracting to obtain goods, software licences or services from us

 

1.3       Where ‘you’ means more than one person, each one of you is responsible, individually, for each of the obligations of all of you under this Agreement, and may include any other company within the same group of companies as you or your subsidiaries or parent companies

 

1.4       ‘This Agreement’ means (in reverse order of precedence):

 

1.4.1    These terms and conditions

 

1.4.2    Any other terms and conditions referred to in this Agreement

 

1.4.3    Any other documentation referred to explicitly in the quotation

 

1.4.4    The quotation

 

1.4.5    Any written amendment to the Agreement agreed between you and us

 

1.4.6    The standard terms and conditions for the supply of hardware maintenance

 

1.5       ‘Staff’ includes employees of EXS IT Services Limited and any sub-contractors

 

1.6       ‘Goods’ includes voice, data and optic cables, plus any related hardware, software, firmware, components, spares, trunking, projectors, IP CCTV, audio visual hardware/components…etc

 

1.7       In this Agreement ‘Services’ include consultancy, installation, maintenance and support services

 

1.8       Our normal hours of work are 9 am to 5 pm Monday to Thursday and 9 am to 4:30 pm on a Friday – these exclude public and bank holidays

 

1.9       ‘Written form’ includes handwriting or typed hard copy, or electronically or digitally recorded, for example email/fax, or from our website if it provides this facility at the time

 

1.10     In this Agreement ‘E and OE’ denotes errors and omissions excluded

 

1.11     Any rule of interpretation that is contrary to common sense does not apply to the Agreement

 

1.12     Any part of the Agreement which is in italics is not part of it, but is simply a comment or for further information

 

 

2          The Agreement/general

 

2.1       We submit all quotations and price lists and accept all orders subject to the following terms and conditions of contract, which shall apply to all contracts for goods supplied by us, our servants, agents or subcontractors

 

2.2       No contract in respect of the goods/services between us and you shall exist until your order has been accepted by us. No conditions or terms stipulated in any other communication document (express or implied) shall vary or annul any of these terms and conditions except in so far the same are expressly consented to in writing by us

 

2.3       Each order received and accepted by us will be deemed to form a separate contract to which these conditions of sale/service shall apply and any waiver or any act of non-enforcement or variation of terms or part thereof on the part of us shall not bind or prejudice us in relation to the application of these conditions to any other order, instalment or delivery whenever so arising

 

2.4       We require an official purchase order reference number prior to commencement of any works/supply of goods

 

2.5       Our obligation to provide services and equipment depends on the customer obtaining the necessary way leaves, consents, or other permissions necessary to enable provision of such services

 

 

3          Quotations and prices

 

3.1       A ‘quotation’ is an indication that we may be willing to supply goods/services at a particular price

 

3.2       No quotation is valid after 28 days of its issue. Beyond this period we reserve the right to invoice goods and services current at the time of delivery/completion

 

3.3       Orders over £100 qualify for a 2% discount before VAT, for payment with order

 

3.4       Prices quoted are done so in the expectation of reasonable free access to the work areas at the agreed contracted times and dates. In the event of delays, or cancellations brought about by third parties, then a discretionary charge of £18 per engineer hour would be made to cover waiting time

 

3.5       No price specified in the quotation or elsewhere includes VAT or any successor tax or other applicable taxes or duties unless specifically stated

 

3.6       We shall have the right, at any time, to take into account increases in costs including (without limitation) costs of agreed changes in any taxes, duties, levies or exchange rates or costs arising as a result of site conditions, delays, interruptions, lack of information or costs incurred as a consequence of metal price rises and any other factor beyond our control

 

3.6       Unless stated, prices quoted do not include any costs for the provision of lifting or access equipment

 

3.7       All quotations are submitted on the basis of E & OE (errors and omissions excluded)

 

 

4          Drawings

 

4.1       All drawings, descriptive matter, weights and dimensions submitted with our quotation are approximate only and any description and illustration contained in any of our literature/advertising matter is intended to present a general idea of the goods/services described therein and none of these shall form part of this contract

 

 

5          Credit policy

 

5.1       30 day credit terms are granted by us subject to a satisfactory formal application process. Until established, all goods and services provided by us will be ‘payment with order’

 

 

6          Payment of price and retention of title

 

6.1       You must pay us the price specified in the Agreement, including any VAT which may apply in accordance with the terms and on the dates contained in it

 

6.2       If we incur additional expenses arising from any instruction, or lack of instruction from you or due to any interruption or delay outside the control of ourselves, the contract price will be adjusted accordingly

 

6.3       Where time charges have been estimated in the Agreement the price payable shall be that on the invoice

 

6.4       Unless payment is received with the order, payment of all goods and services shall be made on or before the end of 30 days from the date of the invoice. We will exercise our legal right to charge interest on outstanding invoices: Late Payment of Commercial Debts (Interest) Act 1998; Late Payment of Commercial Debts Regulations 2002

 

6.5       You must pay us the whole amount due and may not set off or deduct anything from this amount without our written permission

 

6.6       For project durations extended beyond one calendar month, we will submit monthly invoices (or payment requests) for work completed to date

 

6.7       Payment must be made in Sterling

 

6.8       All goods supplied shall remain our sole property until all the goods and services supplied to you are paid in full, at which point title to the same shall pass to you

 

6.9       Until such time as title of the goods passes to you, you shall hold the goods as our fiduciary agent and Bailee and shall keep such goods separate from all other goods in your possession, properly stored, protected and insured to the full price against all risks to the reasonable satisfaction of us

 

6.10     From time to time it may be necessary for our suppliers to deliver hardware directly to site in order to fulfil scheduled works within an agreed time frame. Goods should be checked immediately by the customer for any damage and, if damage is identified, the delivery should be signed for as damaged or the delivery refused. In both of these events EXS must be informed immediately in order to resolve the matter with the supplier or responsible courier. Failure to report defects within a 48 hour time frame may negate both the supplier’s and/or the courier’s liability and therefore a recourse to damages becomes unviable

 

6.11     You shall not pledge or in any way charge by way of security for any indebtedness any of the goods which are our property and without prejudice to the other rights of us. If you do so, all sums whatsoever owed to us shall forthwith become due and payable

 

6.12     EXS IT Services Ltd do not have the facilities to accept payment by credit or debit card, in addition, we do not accept payment via Pay Pal or any other form of digital wallet. Payment must be made either a) via BACS, directly into our business bank account or b) via cheque made payable to 'EXS IT Services Ltd'

6.13      From time to time, it may be necessary to have large and/or high value items of hardware shipped directly to the customer's site, prior to installation. Once items have been delivered to the customer, we will raise an invoice for the aforementioned. In addition, hardware items sold with a single for combined net value of £4,500 or greater, will necessitate payment upon delivery to site and an invoice will be issued accordingly. Installation services will not commence until the aforementioned has been settled in full (addendum: 17/01/19). Installation services will be invoiced separately upon completion, unless otherwise agreed.

 

 

7          Amendments to specifications, hours or work and cancellation

 

7.1       We may alter the specifications of goods or services from time to time so long as the alteration does not make the goods or services inferior. If you ask us to alter the specification after your order has been placed with us, we may consider doing so at our discretion

 

7.2       If after placing an order, you require us to work out of our normal hours as stated in clause 1.8. without having previously requested us to do so, we may consider doing so at our discretion, however, an additional charge may be levied for this which will be communicated to you at the time

 

7.3       If after you have placed your order, you wish to cancel it, we may consider doing so at our discretion, but if we agree, this may be subject to you paying us our anticipated loss on cancellation (including loss of reasonable profit)

 

 

8          Rights of others and permissions

 

8.1       If we have agreed that we are to do anything under the Agreement on your instructions, and as a result are in breach of any rights of anyone else (or anyone else threatens us with proceedings for breach of their rights) you agree to indemnify us against any loss we may suffer, including legal costs, in defending or resisting the proceedings or claim, or settling the proceedings or claim on legal advice. Your obligations under this clause will remain upon completion of the Agreement whatever the reason for termination for a period of 6 years

 

8.2       If you come across circumstances which may lead to a claim under clause 8.1, you agree to tell us about them as soon as possible

 

8.3       If, as a result of such a claim or threat, we decide that it is no longer commercially sensible to proceed with the Agreement, we may cancel the Agreement in accordance with clause 13 below

 

8.4       We will use reasonable commercial effort to ensure that nothing we do under the Agreement infringes the rights of others. If we do anything under the Agreement which results in an actual or threatened infringement of the rights of anyone else (provided that it was something which was not performed at your explicit direction with your specific consent) (‘a claim’) we may at our option:

 

8.4.1    Obtain a licence or settlement of the claim (at no cost to you)

 

8.4.2    Perform our obligation in a different way to avoid the claim

 

8.4.3    Cancel the Agreement under clause 13 below

 

 

9          Sub-contracting

 

9.1       We may sub-contract any of our services we have agreed to provide under this contract at our discretion

9.2       Where we have subcontracted any services to a third party specified by you, we shall not be liable for any non-performance of that party’s obligations, and for the purposes of the Agreement, any delay or hindrance caused by or attributable to that third party shall be considered to have been caused by you

 

 

10        Health and safety

 

10.1     You will use your best endeavours to ensure the site and premises in which we, our employees and sub-contractors may be required to work, are safe and without risk of injury. All known risks on or about such site and premises will be identified and communicated to us in writing. Provision must be made for welfare facilities

 

 

11        Intellectual property and copyright

 

11.1     You acknowledge that material of any nature which we provide you with, either under the Agreement or otherwise (for example, other pre-contractual material, such as our design schematics), in any form whatsoever (either written, hard copy or electronically recorded) may contain intellectual property which is either our property or licensed to us (including copyright, trademarks, registered and unregistered designs and patents). Nothing in the Agreement is intended:

 

11.2     Either as a license for you to use such intellectual property; or

 

11.3     As a transfer of such intellectual property, unless expressly stated in writing

 

11.4     You acknowledge that material of any nature which we provide you with, either under the Agreement or otherwise (for example pre-contractual material, such as design schematics), will, unless already covered by 11.1 above, be our copyright, and you are therefore not permitted to copy, convert or transmit the contents in any form whatsoever (either written, hard copy or electronically recorded) for any other purpose save solely in connection with our provision of goods and services

 

 

12        Unusual or unforeseen circumstances and force majeure

 

If circumstances arise largely beyond our reasonable control so that the consequences could not have been avoided through the exercise of due care:

 

12.1     Which make it no longer commercially sensible for us to continue to fulfil your order, we may reschedule completion of your order, or change the contents and nature of the order, subject to prior agreement with you. Failure to reach agreement with you may result in our decision to cancel the order

 

12.2     If we decide to cancel the order:

 

12.2.1  We shall give you notice and we shall not be responsible for any loss to you which arises because of that decision (although any other rights which you may have arising from before we made that decision will still stand); and

 

12.2.2  You will pay us a reasonable sum in relation to the proportion of the order which we have fulfilled

 

12.3     Without prejudice to any other condition in this document, the following shall be regarded as a non-exhaustive list of causes where clauses

12.1 and 12.2 may apply:

 

12.3.1  Act of God, explosion, flood, fire or accident

 

12.3.2  Strikes, lock-outs or other trade union disputes or industrial actions

 

12.3.3  Acts or threats of war, terrorism, sabotage or other civil disturbance

 

12.3.4 Insolvency

 

 

13        Consequential loss and our liability

 

13.1     Unless explicitly stated, we do not accept liability for any consequential loss of any kind, be it extra cost of working, interruption of business, financial or economic cost, loss of profit, loss of revenue, damages, compensation to any third party or any other kind of consequential loss that may arise in respect of our Agreement

 

13.2     Our entire liability under this contract shall be limited to the value of the goods or services provided under it

 

13.3     Nothing at all in the Agreement is designed or intended to reduce or restrict our liability for the death of or personal injury to anyone caused by our negligence or the negligence of anyone for whom we are responsible (which may include, for example, our employees, sub-contractors or agents)

 

13.4     Nothing in this Agreement excludes liability for fraudulent misrepresentation

 

 

14        Time for performance

 

14.1     Whenever we agree to do anything by or at a particular time, we will try to do it on or by that time, but we shall not be liable for late performance:

 

14.1.1  If late performance is reasonably beyond our control (if it is due, for example, to the failure of our suppliers to perform); or

 

14.1.2  If you have given us insufficient notice to allow us to perform the service(s) ordered

 

 

15        Warranty

 

15.1     Cabling warranty: All cabling work undertaken by us is guaranteed for a period of 12 months from the date of handover. Passive components within the cabling system are further protected against failure for a period of 20 years. This extended warranty is offered by the cabling system manufacturer and any such defects arising should be reported in the first instance to us

 

15.2     Hardware warranty: All active hardware supplied is subject to that stated manufacturer warranty at the time of sale. With some exceptions, all HP Pro-curve switches are shipped with ‘next business day advance replacement lifetime warranty’

 

15.3     We will accept liability for defective products that we supply as part of any installation only to the extent that we are entitled to make a claim under the manufacturer’s Dead on Arrival, warranty or other defective goods terms

 

15.4     Such warranty shall be limited to 12 months or the manufacturer’s warranty period, whichever is lower

 

15.5     In the event that a defective item is subject to warranty and cannot be repaired we agree to supply and install a new replacement to similar value and performance characteristics at no charge to you

 

15.6     We shall be under no liability under the above warranty if our payment terms have not been adhered to

 

15.7     All warranty entitlements shall be forfeited in the event of fair wear and tear, or failure to operate according to our recommendations, or deployment under abnormal conditions outside the manufacturer’s recommendations, or in the event of misuse, damage or unauthorised modification by you, or by anyone acting on your behalf, whether the cause is inadvertent or otherwise

 

15.8     We will accept liability to make good defective workmanship on our services at no cost to you for any such defects notified to us up to and including a period of 90 days from completion of the job, and we will use all our endeavours to undertake such remedy at our earliest opportunity

 

 

16        Indemnity

 

16.1     Where we do anything for you on your premises (or premises under your control), you agree to indemnify us and keep us indemnified against any loss, damage claim or expense arising out of physical injury or of death of any of our staff arising in any way from our performance of the Agreement and arising by reason of the provision of defective equipment, or your failure to provide a safe system of work or otherwise by reason of any negligent act, omission or default on your part or on the part of your servants or agents or other person on your premises

 

 

17        Confidentiality

 

17.1     You may have or obtain confidential information (which includes but it not limited to Information relating to our services, details of our marketing, support and internal structures and similar information relating to our suppliers or related products). You agree that you will use confidential information solely for the purposes of the Agreement and for evaluating future products or services supplied by us, and that you shall not disclose, whether directly or indirectly, to any person any confidential information unless the disclosure is required for you to carry out the Agreement.. Before you make any disclosure to another person, you must obtain from them a binding commitment to keep that information confidential. That commitment must be at least as effective as this obligation is on you.

17.2     The clause above shall not prevent you from disclosing or using any information:

 

17.2.1  Which is public or becomes public through no fault of your own or of those to whom you have entrusted it;

            17.2.2  Or to the extent permitted by law

17.3     We agree to be bound by the obligations detailed above likewise in relation to any confidential information which you may give to us

 

 

18        Termination on insolvency

 

18.1     If you make any voluntary arrangement with your creditors or become subject to an administration order or (being an individual firm) become bankrupt or (being a company) go into liquidation (otherwise that for the purpose of amalgamation or reconstruction) or if an encumbrancer takes possession or a receiver is appointed of any of the property or assets of you, or you are unable to pay your debts or you cease or threaten to cease to carry out business or we reasonably apprehend that any of these events are likely to occur in relation to you, then we shall be entitled to cancel any contract under these conditions or suspend any further deliveries under such contracts without any liability to you and if goods or services have been delivered but have not been paid for, the price shall become immediately due and payable not withstanding any previous Agreement or Agreement to the contrary

 

 

19        Changes

 

19.1     We reserve the right to substitute goods of an equivalent or better specification or design

 

19.2     Any typographical, clerical or other error or omission in sales literature, proposal, price list, acceptance offer, invoice or other documentation or information issued by us shall be subject to correction without any liability on the part of us 

 

 

20        Waiver

 

20.1     If we fail to rely on our strict legal rights under the Agreement, that shall not prevent us from relying on those rights at any time in the future

 

 

21        Disputes

 

21.1     If any dispute or grievance arises between us and you out of the Agreement, before taking further action, both parties agree that it will be discussed by staff members of each party who are most closely involved with the running of the Agreement. If that does not produce a resolution, the problem will be escalated to the respective superiors of each staff member respectively, until the problem is dealt with. Only if the respective heads of each party cannot reach Agreement on the dispute will the matter be taken to the next stage as set out in 21.2

 

21.2     Should the escalation mechanism set out above fail to be effective, before taking any further action both parties agree to submit in good faith to a mediation procedure. Unless the parties agree otherwise, the costs of the mediation shall be borne equally by both of the parties

 

 

22        Staff recruitment

 

22.1     Where you decide to recruit any of our staff on a permanent basis, you shall pay us a fee equivalent to six months of their salary and benefits with us at the time of recruitment or start date, which is the later, by way of a recruitment fee

 

22.2     This fee shall apply where the start date is any day between the first day upon which we do business with you, up to and including six months after the termination of any contract between you and us

 

 

23        Branding and marketing

 

23.1     We attach our logo to cabling system components as a matter of course. The purpose of which is to encourage repeat business. If you do not wish for cabling system components to be branded in this way this needs to be made explicitly clear before any materials are installed

 

 

24        Legal

 

24.1     This Agreement shall be governed by and construed in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the English courts

 

 

 

Revised September 2016/Revised: May 2017/Revised: January 2019

E&OE

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Cecil Francis Business Park, 8 Bear Lane, Pinchbeck, Lincolnshire, United Kingdom  PE11 3XA     www.exs.co.uk     sales@exs.co.uk     Telephone: 01775 233 101

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