Terms and Conditions
MJC IT Solutions Ltd Terms & Conditions 2007 Edition
MJC IT Solutions Ltd agrees to sell the Goods and the Customer agrees to buy and accept the same and the following terms and conditions shall be incorporated into this agreement:
1.Definitions
(a) “The Seller” means MJC IT Solutions Ltd
(b )“The Goods” shall mean the items defined in the Order Schedule
(c ) “Customer” means any person, firm or company placing an order or otherwise dealing with Seller on following standard conditions.
(d) ”Maintenance Terms” means Seller’s Maintenance Agreement terms and conditions, a copy of which is annexed to Order Schedule
(e) “Order Schedule” means order schedule signed by Customer and Seller to which these terms and conditions are or may be appended.
(f) ”Software” means any software supplied by the Customer to the Seller in connection with the Goods
2.General
(a)These terms apply to all Goods ordered from the Seller and shall govern all transactions between the Seller and the Customer until they
are terminated or superseded by the Seller.
(b)It is the Customer’s responsibility to have made clear to the Seller its requirements.
(c)The Customer acknowledges that this agreement is being entered into on the basis of the documents set out as being incorporated
above and that he has not relied upon any other representation whether oral or in writing and accepts and understands that no
member of the staff of the Seller other than a director has any authority to make a binding representation concerning the Goods or any
variation of the terms of the agreement.
(d)These standard terms and conditions shall constitute a binding agreement.
(e)Orders placed with Seller require Seller acceptance (which may be given in any way) before any contract arises which binds Seller.
(f)Any quotation in whatever form is given subject to these conditions and does not constitute an offer to sell.
(g)Any failure by the Seller to enforce the provisions herein shall not constitute waiver of those provisions.
(h)Each of the clauses in this agreement shall be construed and shall take effect separately and in the event of one or more clauses or subclauses
being held ineffective, this shall not affect the validity of the remaining clauses or sub-clauses.
(i)No order which has been accepted by the Seller may be cancelled by the Customer except with the agreement in writing of the Seller on
terms that the Customer shall pay to the Seller not less than 50% of the vat inclusive cost of the order or, if higher, the actual costs
incurred by the Seller as a result of such cancellation. Such costs may include but are not limited to, storage costs, cost of
obsolescence, finance costs, supplier restocking fees and labour costs.
(j)Seller is entitled to levy and the Customer shall pay an order modification fee of 100% of any component of the order that is revised by
the customer. The modification fee will cover the administration, handling, stock holding and duplicated labour expenses that will result
from the change in the planning and efficiency of the installation that would have occurred had the order not been modified.
(k)If the Customer has agreed to enter into maintenance agreement for the Goods with the Seller the Customer acknowledges that the
Maintenance Terms shall apply.
(l)These conditions supersede any prior promise or representation of any kind.
(m)These conditions are the only conditions upon which Seller is prepared to deal and shall prevail to exclusion of any other conditions.
(n)The Customer contract as principal and the Customer shall not without the Seller’s prior written consent assign or transfer or purport so
to do to any third party any contract subject to these conditions or any interest therein.
3.Payment
(a)50% of the VAT inclusive invoice value shall be paid by the Customer on the date the Order Schedule is signed. The final 50% of the
VAT inclusive value shall be made on the date of the installation of the equipment stated on the signed Order Schedule. This clause is
will not apply if a finance agreement has been signed or any special payment terms have been agreed in writing. This clause will
override payment clause 3.4 of the Maintenance Terms if maintenance is included with any hardware purchase.
(b)Seller reserves the right in the event of failure by the Customer to make any payment when it becomes due to defer or cancel any further
deliveries and to charge interest at rate for time being specified under Late Payment of Commercial Debts (Interest) Act 1998.
4.Delivery
(a)Delivery shall be made during the Seller’s normal working hours.
(b)The Customer shall make one member of staff available to check the delivery of the Goods
(c)Any date for delivery will be estimated by the Seller as accurately as possible but is not guaranteed and in the event of any failure to
meet such date the Seller’s sole obligation shall be to deliver the Goods within a reasonable period thereafter. Delivery dates in any
contract are not essential.
(d)If any order for Goods is to be delivered by instalments each instalment shall be treated as separate contract subject to these conditions
save only that Seller may suspend delivery of any instalment while payment in respect of previous instalment is overdue.
(e)Notwithstanding sub-clause (c), if the Seller shall fail to make delivery or make late or defective delivery of any instalment this shall not in
itself entitle the Customer to refuse to pay for or take delivery of further instalments.
(f)Customer must notify the Seller and (if appropriate) the carrier in writing of the non-receipt of any Goods by the Customer or his
nominated carrier within 7 days of the invoice date and of any damaged Goods within 14 days of receipt failing which the Seller shall
be under no liability in respect thereof to the Customer.
5.Title
(a)Delivery notwithstanding, the property in the Goods shall remain with the Seller and shall not pass to the Customer until the Seller has
received payment in full (including any interest due to it) in respect of all Goods supplied to Customer by the Seller under any contract.
Until the full price of any delivered Goods is paid to the Seller the Customer holds the Goods as bailee on behalf of the Seller and the
Customer hereby acknowledges that a fiduciary relationship exists in respect of the Goods between the Seller and the Customer.
(b)Risk in the Goods passes to the Customer upon the Goods being tendered for delivery at the Customer’s designated premises or on
delivery to the carrier nominated by the Customer or (where the Goods are to be collected by the Customer from the Seller) on being
loaded onto the vehicle of the Customer or agent.
(c)Unless the Customer gives notice in writing to the Seller within 7 days of receipt of the Goods of any defect complained of the Customer
shall be deemed to accept the Goods as having been delivered in all respects in accordance with contract and shall have no further
right to reject the Goods or recover any compensation therefore.
(d)The Customer shall indemnify the Seller against any loss or damage to the Goods or any proceedings arising with respect thereof from
the time of delivery until the receipt by the Seller of the purchase price and shall house the Goods in suitable premises.
(e)Attachment to or incorporation in other Goods shall not operate to deny the Seller’s title.
(f)The Customer shall store or keep the Goods in such a way to ensure that they remain readily identifiable as belonging to the Seller until
property in the Goods has passed to the Customer and shall not remove or obscure any mark placed by the Seller upon them nor
shall sell nor grant nor purport to sell or grant any interest in them until property in the Goods has passed to the Customer.
(g)If in breach of sub-clause (f) above, the Customer does dispose of Goods, the Customer shall hold proceeds of sale thereof in a
separate bank account to the Seller’s order.
(h)The Seller shall be entitled to repossess all or any of the Goods whether or not attached to, or incorporated in or with other Goods, upon
the happening of any of the events set out in the clause below entitled “Termination” or upon the Customer failing to make payment in
accordance with the terms of payment above.
(i)For the purpose of repossessing in accordance with sub-clause (g) above the Seller or its agents shall be entitled to enter upon any land
or buildings in or on which the Goods may be situated with such transport as may be required to remove them.
(j)The right to repossess shall be in addition and without prejudice to the Seller’s other rights to enforce this agreement.
(k)Nothing in this clause shall confer upon the Customer the right to return the Goods or delay or refuse payment.
6.Warranty
(a)The Seller warrants only that the Goods shall at the time of delivery be in accordance with the manufacturer’s specification relating
thereto & does not warrant that the Goods supplied are fit for their purpose. The Customer must satisfy himself by all practicable
means available to him that the Goods are fit for the purpose for which he intends to use them and warrants hereby that he does.
(b) If the Goods do not conform to the above warranty the Seller will at its option rectify the defect or replace the defective Goods free of
charge or take back the same and refund the purchase price provided that:-
i)The Customer gives written notice of any alleged defect to the Seller within 7 days of the defect being discovered;
ii)On discovery of defect Customer makes no further use of the Goods and allows the Seller a reasonable opportunity to inspect them;
iii)The Customer has in all material respects complied with any instructions or directions given by the Seller.
iv)The total price for the Goods has been paid by the due date for payment.
(c)All Goods are sold subject to the express warranty terms specified by the original manufacturer or supplier. the Seller will pass to the
Customer to the extent that it is able to do so, the benefit of such guarantee or warranty relating to the Goods as it may receive from
the manufacturer or supplier of the Goods. Any Software supplied to the Buyer pursuant to the agreement between the Seller and the
Customer is supplied subject to the provisions of Software proprietor’s licensing terms from time to time and the Seller accepts no
liability with regard to such Software, save for those liabilities and warranties expressly stated herein.
(d)Performance of any of the options in sub-clause (b) of this clause shall constitute an entire discharge of the the Seller’s liability under
this warranty and the Seller shall have no further liability to the Customer.
(e)This clause has effect to the extent that it is not rendered void by Sections 2 and 3 of the Unfair Contract Terms Act 1977.
7.Force Majeure
The Seller shall be relieved from liability under this agreement if and to the extent that it may become unable to carry out any or all of
its obligations as a result of any event or matter beyond its reasonable control which occurs after the date of this agreement and
which was not reasonably to be foreseen to be likely to occur during the anticipated period for the performance of the agreement
and/or if to the extent that performance of all of the Seller’s obligations becomes materially more expensive or onerous as the result of
any such event or matter. Where there is a shortage of Goods or materials or labour the Seller’s decision as to the fair allocation of
such between Customers shall be final and in so far as such allocation results in shortfall or delay such shortfall or delay shall be
deemed to arise from matters beyond the control of the Seller and the Seller shall be relieved from liability accordingly.
8.Limitation of Liability
(a)The following provisions set out the Seller’s entire liability (including any liability for the acts and omissions of its employees, agents and
sub-contractors) to the Customer in respect of:
(i)any breach of its contractual obligations arising under these Conditions; and
(ii)any representation, statement or tortuous act or omission including negligence arising under or in connection with these Conditions.
AND THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 8.
(b)Any act or omission on the part of the Seller or its employees, agents or sub-contractors falling within 8(a) above shall for the purposes
of this clause 8 be known as an “Event of Default”.
(c)Subject as expressly provided in these conditions all warranties, conditions or other terms implied by statute or common law save for the
conditions implied by Section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law.
(d)Nothing in this clause shall limit or exclude the liability of the Seller for death or personal injury resulting from the negligence of the Seller
or fraudulent misrepresentation.
(e)Subject to the provisions of clause 8(d) the Seller’s entire liability in respect of any Event of Default shall be limited to damages of an
amount equal to £1,000,000 in the case of physical damage to the tangible property of the Customer and the purchase price of the
Goods in the case of any other Event of Default.
(f)Subject to Clause 8d above the Seller shall not be liable to the Customer in respect of any Event of Default for any loss or damage which
may be suffered by the Customer, whether the same is suffered directly or indirectly or is immediate or consequential, which falls
within any of the following categories:
(i)special damage even though the Seller was aware of the circumstances in which such special damage could arise (such as third party
loss arising from the installation of the Goods);
(ii)loss of;
a.profits;
b.anticipated savings;
c.business opportunity; or
d.goodwill; or
e.cost of removal of defective Goods, installation of replacement or repaired Goods and any rectification work required in connection with
such removal or installation;
f.cost of any wasted expenditure; or
g.cost of mitigation
(g)The Seller shall not be liable for any loss or damage (whether direct, indirect or consequential) howsoever arising which may be suffered
by the Customer, including loss or damage arising from late delivery and any loss or damage whatsoever indirect or direct arising out
of any defect in any Goods sold.
(h)If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim
under any contract subject to these conditions.
(i)The Customer hereby agrees to forthwith notify the Seller of any Event of Default as soon as the Customer is aware of the same and to
allow the Seller not less than 60 days after notification in which to remedy any Event of Default hereunder.
(j)Except in case of Event of Default arising under clause 8(d) above the Seller shall have no liability to the Customer in respect of any
Event of Default unless the Customer shall have served notice of the same upon the Company within 3 months of the date it became
aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
(k)The Customer shall indemnify and keep the Seller indemnified in respect of any proceedings or action of any nature whatsoever made
or brought by or against the Customer in respect of the Goods and Services or any of them.
9.Variation
(a)These conditions may be varied only by an express agreement from a director in writing signed by or on behalf of the Seller.
(b)Seller reserves right at any time by written notice before despatch to vary the price of Goods to take account of any costs increases.
10.Termination/Cancellation
If there shall be any breach by the Customer of any of these conditions or the Customer shall be wound up or go into liquidation or
have a receiver appointed or otherwise cease to trade for any other reason whether but not exclusively by reason of bankruptcy or
entry into any arrangement for the benefit of their creditors generally the Seller may defer or cancel further deliveries and treat any
contract subject to these Conditions as determined forthwith on giving written notice to the Customer but without prejudice to any
rights as to the unpaid purchase price of any Goods delivered and damages for any loss.
11.Severability
If any provisions of these conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the other provisions of these conditions which shall remain in full
force and effect.
12.Jurisdiction
The agreement shall be governed by and construed in accordance with English law and the parties agree to submit to the exclusive
jurisdiction of the English Courts.
MJC IT SOLUTIONS LTD - MAINTENANCE AGREEMENT
TERMS & CONDITIONS
2006 Edition Update 3
1. Definitions
1.1 "ADDITIONAL CHARGES" means any charges made by Seller for the services referred to in clauses 5.2 and 5.3 below.
"COMMENCEMENT DATE" means the date set out in the Schedule attached upon which this Agreement shall commence.
"CUSTOMER" means the individual firm, company or other body named in the attached Schedule.
“DOCUMENTATION” means the operating manuals, user instructions and other related materials supplied to Customer by Seller (whether physically or by electronic means) for aiding the use of the Equipment or software, including any part or copy of them.
"EQUIPMENT" means the equipment, the description and location of which are shown on the attached Schedule.
"EXCEPTED SERVICES" means those services referred to in clause 5 below which do not fall within Maintenance Services.
"FORCE MAJEURE" means in relation to either party, any circumstances beyond the reasonable control of that party and in respect to the Seller only, any strike, lock-out or other industrial action.
"LIABILITY" means any liability arising by reason of any representation (unless fraudulent), or any breach of any implied term or any duty at common law, or under any statute, or under any express term of this Agreement.
"LOCATION" means the location of the Equipment shown on the attached Schedule or any other location agreed from time to time between the parties.
"MAINTENANCE CHARGES" means the annual charge for the Maintenance Services calculated in accordance with clause 3 below and set out in the attached Schedule.
"MAINTENANCE SERVICES" means the provision of Maintenance as defined in clause 4 below.
"NORMAL WORKING HOURS" means the hours of 9 am to 5.30 p.m. (inclusive) on any Working Day.
Calls to the Technical Team will only be logged until 5pm on any working day.
“SELLER” means MJC IT Solutions Ltd or any successor to Seller from whom notice of assignment of this agreement is given.
"WORKING DAY" means any day other than Saturday or Sunday or a Bank or Public Holiday.
2. Seller's Undertaking
2.1 In consideration of the payment by the Customer from time to time of the Maintenance Charges in accordance with the provisions of clause 3 below, Seller undertakes to provide the Maintenance Services in respect of the Equipment upon the terms and conditions of this agreement.
3. Maintenance Charges
3.1 In consideration of the provision of the Maintenance Services the Customer shall subject to receipt of an invoice from Seller pay to Seller the Maintenance Charges.
3.2 Seller shall not be entitled to vary the Maintenance Charges during the period of 12 months commencing on the Commencement Date. Thereafter Seller shall be entitled to vary the Maintenance Charges not more than once in every successive period of 12 months upon giving not less than thirty days prior written notice of increase to the Customer.
3.3 The Maintenance Charges shall not include the cost of any Excepted Services as set out in clause 5 below.
3.4 The Maintenance Charges shall be payable by the Customer within 7 days of receipt of an invoice therefore. At the discretion of the Seller (which shall be notified to the Customer in writing at time of contracting) this clause may be overridden by clause 3 (a) of the Hardware Terms if hardware is included with any maintenance purchase.
3.5 Seller shall be entitled to charge the Customer interest in respect of the late payment of any Maintenance Charges or Additional Charges due under this Agreement (as well after as before judgement) at the rate specified under the Late Payment of Commercial Debts (Interest) Act 1998.
3.6 In the event that any Maintenance Charges or Additional Charges are not paid on the due date Seller shall be entitled to suspend the provision of the Maintenance Services until such charges are paid in full.
3.7 All charges payable by the Customer under this Agreement are exclusive of applicable Value Added Tax which shall be additionally payable by the Customer together with the charge in question.
4. Maintenance Services
4.1 Maintenance Services shall comprise the provision by Seller of Maintenance as defined in clauses 4.2 below but subject to the provisions of clause 5 (Excepted Services).
4.2 Maintenance shall comprise:
4.2.1 upon receipt of a request from a Customer the inspection testing and diagnosing by Seller of any fault reported in any item of Equipment; and
4.2.2 the carrying out by Seller of such repairs, replacement of parts, cleaning, lubrication or adjustment as Seller shall judge necessary to remedy the said fault provided that Maintenance shall not comprise the management by the Seller of the Customer’s Equipment.
4.3 In the event that Seller is unable to repair the Equipment at the Location, Seller may remove the Equipment (or where practical part of the Equipment in question) for the purposes of repair.
4.4 In the event that it is necessary for the Equipment or any part of the Equipment to be removed from the Location for repair and as a consequence a significant part of the Customer's operations are affected Seller shall, entirely at its discretion, and subject to availability from time to time, loan other reasonably equivalent equipment to the Customer while the Equipment or part in question is being repaired.
4.5 The Customer undertakes and agrees to take all reasonable and proper care of any equipment loaned by Seller (The Loan Equipment) and keep The Loan Equipment in good and serviceable condition and to indemnify Seller against loss of or damage to The Loan Equipment howsoever caused.
4.6 If any part of the Equipment can no longer be maintained in good working order by the provision of replacement spare parts or the whole of the Equipment is damaged beyond economic repair otherwise than through Seller's fault (as to whether either of which events has occurred Seller's decision shall be final and binding on the Customer) Seller shall be entitled to terminate this Agreement forthwith, by giving written notice to the Customer, in respect of the whole or any part of the Equipment which can no longer be maintained or to supply the Customer with an item of equipment to replace the part of Equipment which can no longer be maintained. Such replacement equipment (which shall become part of the Equipment) shall be sold to the Customer by the Seller at the price paid by Seller to its supplier for the said item of Equipment. Seller’s decision as to whether an item of equipment is a replacement for the item of Equipment which can no longer be maintained shall be final.
4.7 Seller is entitled to carry out the Maintenance Services under this Agreement through any agents or sub-contractors appointed by Seller in its absolute discretion for that purpose.
4.8 Seller does not warrant that the Maintenance Services (or the Excepted Services if provided by Seller) will cause the Equipment to operate without interruption or error.
4.9 Seller does not warrant that any data or software back up Equipment or hardware (whether or not supplied by the Seller) will operate effectively. Configuration of such Equipment and/or hardware shall be the continuing responsibility of the Customer. Where the Seller carries out any configuration of such Equipment and/or hardware as part of the Maintenance Services or Excepted Services it does not warrant that such configuration shall be sufficient to meet the Customers needs or that any data or software backed up will be recoverable or without error.
5. Excepted Services
5.1 The Maintenance Services shall not include:
5.1.1 the correction of any fault due to:
5.1.1.1 the Customer's failure to maintain a suitable environment for the Equipment at the Location in accordance with the manufacturer’s recommendations including without limitation failure to maintain a constant power supply, air conditioning or humidity control.
5.1.1.2 the Customer's neglect or misuse of the Equipment or its failure to operate the Equipment in accordance with the manufacturer’s instruction manuals or for the purposes for which it was designed.
5.1.1.3 the alteration modification or maintenance of the Equipment by any party other than Seller without Seller's prior consent (and the Customers attention is drawn to clause 11.2.3);
5.1.1.4 the transportation or relocation of the Equipment save where the same has been performed by or under the direction of Seller;
5.1.1.5 the use of defective or inappropriate supplies with the Equipment;
5.1.1.6 any defect or error in any software used upon or in association with the Equipment;
5.1.1.7 any accident or disaster affecting the Equipment including without limitation fire, flood, water, wind, lightning, transportation, vandalism or burglary; or
5.1.1.8 the Customer's failure, inability or refusal to afford Seller's personnel proper access to the Equipment;
5.1.1.9 the Customer’s failure to accurately configure any data/software backup Equipment and/or hardware;
5.1.2 the painting or refinishing of the Equipment
5.1.3 the relocation or transportation of the Equipment except as agreed by Seller in writing;
5.1.4 electrical work external to the Equipment;
5.1.5 the provision of consumable supplies (for example paper, print heads, daisy wheels, tapes, cartridges, developer, fuser units, drum units, drums and printing ribbons, feed tyres) for use in association with the Equipment;
5.1.6 any modification or alteration of or attachment to the Equipment or removal of the same.
5.2 If at the request of the Customer Seller agrees to provide any of the Excepted Services (notwithstanding that Seller is under no obligation to do so) or Maintenance Services are requested by the Customer without any reasonable justification then Seller will endeavour to undertake the work as soon as reasonably practical and the Customer shall be liable to pay Seller’s standard charge for such Services on a time and material basis in accordance with Seller’s then current rates (The Additional Charges).
5.3 Seller shall be under no obligation to provide Maintenance Services in respect of:
5.3.1 problems (including back up problems) resulting from any modifications or customisation of the software or the Equipment not authorised in writing by Seller. For the avoidance of doubt, modifications to the software shall include but not be limited to changes to the logical or physical database schema for the software, changes to the disk layout and configuration, and hand-modified changes to the data within the database;
5.3.2 the effects of a virus, worm, logic bomb, trojan horse attack on the software and/or the hardware;
5.3.3 any software other than the software on the software schedule as supplied to the Seller by the Customer at the commencement of this Agreement or any additional software added to the software schedule with the written consent of the Supplier during the course of this Agreement;
5.3.4 incorrect or unauthorised use of the software or operator error where these are defined as use or operation not in accordance with the Documentation supplied by Seller (if any);
5.3.5 any programs used in conjunction with the software;
5.3.6 any change by the Customer in the configuration of back up Equipment configured by the Seller or any change in the manner in which data selected to be backed up is stored;
5.3.7 any unlawful, immoral or obscene data, software, information or images stored on any Equipment.
6. Times for Maintenance Services
6.1 Maintenance will be provided by Seller upon request of the Customer during Normal Working Hours. Subject to clause 6.2 and 6.3 below Seller will use its reasonable endeavours to respond to a request for Maintenance within four hours of receipt of the same and to undertake the Maintenance as soon as reasonably practicable thereafter provided that time shall not be of the essence.
6.2 For the purposes only of determining the period of time within which Seller responds to a request for Maintenance pursuant to clause 6.1 any period between the end of Normal Working Hours on one Working Day and the beginning of Normal Working Hours on the next Working Day shall be disregarded.
6.3 Any request for Services which are received from the Customer after Normal Working Hours on any day shall (unless Seller expressly and in writing agrees otherwise) be deemed to be made at the beginning of Normal Working Hours on the next Working Day.
7. Customer's Obligations
7.1 The Customer undertakes to Seller throughout the term of this Agreement:
7.1.1 to grant Seller such access to the Location as Seller shall from time to time reasonably require in order to discharge its obligations hereunder;
7.1.2 to make available at the Location such facilities as Seller shall reasonably require in order to discharge its obligations hereunder;
7.1.3 to take all reasonable precautions to protect the health and safety of Seller's employees agents and sub-contractors while at the Location;
7.1.4 to make available the Equipment and supply all documentation and other information necessary for Seller to diagnose any fault in the Equipment;
7.1.5 not to move the Equipment from the Location without obtaining the prior written consent of Seller which shall not be unreasonably withheld;
7.1.6 to ensure that before the Seller removes any Equipment, or loan equipment, further to clause 4.3, 4.4, or otherwise, that it has fully backed up any data or software stored on such Equipment prior to its removal.
7.2 The Customer shall not be entitled to assign this Agreement or any of its rights and obligations hereunder without the prior written consent of Seller.
7.3 The Customer shall during the continuance of the Agreement effect and maintain adequate security measures to safeguard the software from access or use by any unauthorised person or any virus. For the avoidance of doubt the Customer should keep and maintain adequate virus protection software and /or programs which should be updated as necessary.
8. Limitation of Liability
8.1 The following provisions set out Seller’s entire liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Customer in respect of:
8.1.1 any breach of its contractual obligations arising under this agreement; and
8.1.2 any representation statement or tortious act or omission including negligence arising under or in connection with the agreement.
AND THE CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 8
8.2 Any act or omission on the part of Seller or its employees agents or sub-contractors falling within clause 8.1 above shall for the purpose of this clause 8 be known as an “Event of Default”.
8.3 Subject to the provisions of clause 8.4 all warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from this agreement.
8.4 Seller’s liability to the Customer for death or injury resulting from its own or its employees’ agents’ or sub-contractors’ negligence or for any fraudulent misrepresentation by such employee, agent or sub-contractor shall not be limited.
8.5 Subject to the limits set out in clause 8.6 below Seller shall accept liability to the Customer in respect of damage to the tangible property of the Customer resulting from the negligence of Seller or its employees agents or sub-contractors.
8.6 Subject to the provisions of clause 8.4 the Seller’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to £1,000,000 in the case of physical damage to the tangible property of the Customer and the Maintenance Charges actually paid by the Customer in the case of any other Event of Default.
8.7 Subject to clause 8.4 above Seller shall not be liable to the Customer in respect of any Event of Default for any loss or damage which may be suffered by the Customer whether the same is suffered directly or indirectly or is immediate or consequential which falls within any of the following categories:
8.7.1 special damage even though Seller was aware of the circumstances in which such special damage could arise; or
8.7.2 loss of:
8.7.2.1 profits;
8.7.2.2 anticipated savings;
8.7.2.3 business opportunity;
8.7.2.4 goodwill;
8.7.2.5 data (and the Customer attention is specifically drawn to clause 4.9 and 7.1.6);
8.7.3 Cost of removal of defective Equipment, installation of replacement or repaired Equipment and any rectification work required in connection with such removal or installation;
8.7.4 Cost of any wasted expenditure;
8.7.5 Cost of mitigation.
8.8 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement.
8.9 The Customer hereby agrees to forthwith notify Seller of any Event of Default as soon as the Customer is aware of the same and to allow Seller not less than 60 days after notification in which to remedy any Event of Default hereunder.
8.10 Except in the case of an Event of Default arising under clause 8.4 above Seller shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of the same upon the Company within 6 months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
8.11 The parties hereby acknowledge and agree that the limitations contained in this clause 8 are reasonable in light of all the circumstances.
8.12 Nothing in this clause 8 shall confer any right or remedy upon the Customer to which it would not be otherwise legally entitled.
9. Customer's Warranty
9.1 The Customer warrants and undertakes to Seller that it is the owner of the Equipment and that it has full power and authority to enter into this Agreement and permit Seller to perform the Maintenance Services and, if required, the Excepted Services.
9.2 The Customer undertakes to indemnify and hold harmless Seller against any loss or damage that Seller may suffer as a result of a breach by the Customer of clause 9.1 above.
9.3 The Customer warrants and undertakes to Seller that on the date of this Agreement and on the Commencement Date the Equipment, if not purchased from Seller, is in good working order and free from defect.
9.4 In respect to any Customer data which the Seller may process in the course of providing the Maintenance Services and/or Excepted Services the Seller shall at all times act as the data processor of the Customer not a data controller and the Customer warrants that it complies with the provisions of the Data Protection Act 1998 and, if required, is registered under that Act.
9.5 The customer warrants that at the Commencement Date and throughout the period of this Agreement there is no illegal, immoral, obscene, sexually explicit or racially abusive materiel, data or software, or data which it does not own the copyright in or have the necessary consents to use on the Equipment and that that nothing stored on the Equipment infringes on the rights of third parties.
10. Replacement of Parts
10.1 Seller shall at its absolute discretion be entitled to supply new, second-hand or reconditioned replacement parts in the performance of its duties hereunder.
10.2 Any parts of the Equipment replaced by Seller pursuant to clause 10.1 above ("Replaced Parts") shall upon replacement become the property of Seller and the Customer warrants that either it shall have a free and unencumbered title to such Replaced Parts or (where the Equipment is leased or charged) that it shall have obtained all necessary consents and authorities to part with possession and give good title to the Replaced Parts.
11. Duration and Termination
11.1 This Agreement shall come into force on the Commencement Date and subject to clause 11.2 and 11.3 shall continue in force for an initial period of one year from that date and thereafter unless and until terminated by either party giving to the other at any time not less than three months prior written notice of termination expiring at the end of that initial period or at the end of any subsequent consecutive period of 12 months.
11.2 Seller shall be entitled to terminate this Agreement:
11.2.1 in the circumstances and to the extent referred to in clause 4.6; and
11.2.2 forthwith by giving written notice to the Customer if any sum payable under this Agreement is not paid on the due date;
11.2.3 forthwith by giving written notice to the Customer if the Equipment is in any way altered, modified or maintained by any other party (including employees of the Customer) other than Seller without Seller’s prior consent;
11.2.4 forthwith by giving written notice if the Customer is in breach of its warranty set out in clause 9.5.
11.3 Either party shall be entitled forthwith to terminate this Agreement by written notice to the other if that other party commits any continuing or material breach of any of the provisions of this Agreement and, in the case of such a breach which is capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.
11.4 For the purpose of 11.3, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
11.5 The rights to terminate this Agreement given by this clause shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
11.6 In the event that the Agreement is terminated in accordance with clauses 11.2.3 or 11.2.4 all Maintenance Charges or Additional Charges due in respect of the period of 12 months commencing on the Commencement Date or the anniversary thereof prior to the termination date shall become payable immediately by the Customer.
11.7 Upon the termination of this Agreement for any reason, subject as otherwise provided in this Agreement and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Agreement other than the payment of any outstanding charges.
12. Force Majeure
12.1 If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.
12.2 Notwithstanding any other provision of this Agreement, neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under this Agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
13. Variation
These conditions may be varied only by an express agreement from a director in writing signed by or on behalf of the Seller.
14. Notices
14.1 Any notice or other information required or authorised by this Agreement to be given by either party to the other may only be given by recorded delivery to the other party at the address shown overleaf or to such address as may be notified by one party to the other in writing from time to time or to its registered office.
14.2 The recorded delivery despatch receipt must be retained by the Customer and presented to Seller at its request as proof that notice of termination was given in accordance with this clause and in accordance with the time limits set out in clause 11.
15. Severability
If any provisions of these conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these conditions which shall remain in full force and effect.
16. Third Party Rights
In respect to any contract entered into further to these terms and conditions, no other party shall have the right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the contract but this does not effect any right or remedy of a third party which exists or is available apart from that Act.
17. Law
This Agreement shall be governed by and construed in all respects in accordance with the laws of England and Wales and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.