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Terms & Conditions for Fixed Price Servicing of Computers (Desktop and Laptop PCs)
THIS AGREEMENT is made as of the date payment is made for a Fixed Price Service to Mytechie Solutions Limited.
BETWEEN :
(1) Mytechie Solutions Limited (“the Company”)
(2) the owner of the computer in question ("the Client").
WHEREAS :
A. The Company provides a fixed-price computer service.
B. The Client wishes the Company to provide to it a fixed-price computer service.
C. The services are to be provided on the terms and conditions set out in this Agreement.
WHEREBY IT IS AGREED as follows :-
1. Definitions
In this Agreement, the following terms shall have the following meanings:-
"Assignment" the services to be provided by the Company to the Client, details of which are set out in Schedule 1.
"Assignment Price" the cost of the Assignment as stated in Schedule 2.
"Billing Rates" The Company’s personnel charges which form the basis for the time element of time and materials charges levied by The Company.
“Booking Time” The point in time at which the Client notified the Company that they wanted a Fixed-Price Service to be carried out on a particular computer.
“Collection” Collection of the computer from the Client or delivery of the computer by the Client to the Company’s premises.
“Delivery” Post-service delivery of the computer back to the Client.
"Intellectual Property Rights" all copyrights, patents, database rights, registered and unregistered design rights, topography rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.
"Materials" all documentation, software and other materials provided by the Company to the Client pursuant to the Assignment.
2. Price and Payment
2.1 The Assignment Price is payable in accordance with Schedule 2.
2.2 The Assignment Price is exclusive of: -
a. any products or services not expressly provided for in Schedule 1. These shall be chargeable on a time and materials basis in accordance with the Company’s then current Billing Rates; and
b. VAT.
2.3 Payment for Fixed-price services is due at the time of booking, collection or delivery of the serviced PC. Under certain circumstances, up to 30 days credit may be allowed for settlement of payment. In this case, the Client shall pay each invoice correctly raised by the Company within 30 days of the date of such invoice.
2.4 If the Client fails to pay any sum due under this Agreement when it is expressed to be due, the Company shall be entitled to charge interest on a daily basis on all overdue amounts and on outstanding interest from the date of such failure until payment (both before and after judgement) at an annual rate 4% above the base rate for the time being in force of The Bank of England.
2.5 Non-delivery or non-performance of services by any third party other than the Company’s express agents in relation to the Assignment or any part thereof shall not give the Client any right to delay any payment to the Company or to make any claim whatsoever against the Company.
2.6 For the purposes of this Agreement, time of payment shall be of the essence.
2.7 The Company shall be entitled to suspend the Assignment or any part thereof until arrangements as to credit or payment to the satisfaction of the Company have been made and treat the Agreement as having been repudiated by the Client if any of the following scenarios arise:
a. payment of any element of the Assignment Price is not received by the due date;
b. the Client fails to pay any other sum due to the Company under this Agreement or any other agreement;
c. an order is made or a resolution is passed for the winding up of the Client;
d. a provisional liquidator is appointed in respect of the Client;
e. an administration order is made in respect of the Client;
f. a receiver is appointed in respect of the Client or all or any of its assets;
g. the Client is unable to pay any of its debts within the meaning of Section 123 of the Insolvency Act 1986;
h. a voluntary arrangement is proposed under Section 1 of the Insolvency Act 1986 in respect of the Client.
i. the Client breaches a term of an agreement between the parties and such breach is irremediable, or, if remediable, is not remedied to the Company’s satisfaction within 7 days of notice to remedy such breach.
2.8 Any temporary reduction of or interruption to the Company's ability to carry out the Assignment or part thereof shall not entitle the Client to suspend even temporarily any payment already due or for services already rendered.
3. Hardware and Third Party Software
3.1 Any hardware supplied by the Company to the Client is third party hardware not manufactured by the Company. Accordingly, unless the Client has entered into a hardware maintenance contract with the Company which covers the hardware problem in question, the Company shall not have any responsibility/liability for such hardware and any recourse of the Client in the event of any dissatisfaction with such hardware will be directly to the manufacturer itself.
3.2 Any third party software supplied by the Company is supplied on an as is basis and the Client will have a direct licence with the manufacturer of such software.
3.3 Unless the Client has entered into a valid software maintenance contract with the Company which covers the software problem in question, the Company shall not have any responsibility in respect of such software.
4. Intellectual Property and Indemnities
4.1 The Client acknowledges that it obtains no ownership of any Intellectual Property Rights whatsoever by virtue of this Agreement including without limitation in the whole or part of any software or documentation written by or on behalf of the Company, any modifications or updates thereto, any programme or study commissioned by the Client.
4.2 The Client shall immediately bring to the attention of the Company any infringement or suspected infringement by any third party of any of the Intellectual Property Rights licensed hereunder of which it is aware and shall at the request and expense of the Company take such action or assist the Company in taking such action as the Company may deem appropriate to protect the Intellectual Property Rights.
4.3 The Client indemnifies the Company against all liabilities, costs and expenses which the Company may incur as a result of work done in accordance with the Client's specifications which involve directly or indirectly the infringement of any Intellectual Property Rights of any third party.
4.4 The Client shall at the request of the Company, provide the Company with all such documents, information and assistance, execute all such documents and otherwise do all such acts and things as the Company may reasonably require for the purpose of giving effect to the terms of this Clause 4.
4.5 The Client shall indemnify the Company and its employees and agents against all damage or injury of any kind suffered by the Company or any of its employees or agents caused by or arising from or attributable to any act or omission by the Client, its employees or agents.
5. Change Control
5.1 If during the performance of the Assignment as a result of acceptance testing or otherwise, the Client wishes to modify or add to the Assignment, the Client shall supply to The Company written particulars of the proposed change(s) ("the Addition") and such further details as the Company may request.
5.2 If requested so to do, the Company will provide the Client with a fixed cost for the Addition ("Additional Assignment Price"). Otherwise costs of the Addition may be estimated on a time and materials basis ("TM Additional Estimate"). the Company will charge the Client on a time and materials basis for calculating an Additional Assignment Price or a TM Additional Estimate. This includes resolution of problems the Company was told about at the Booking Time, but where agreement was not reached on whether they would be resolved under the Fixed-Pirce Service.
5.3 Upon notification of the Additional Assignment Price/ TM Additional Estimate, the Client may elect either:
a. to accept such quotation in which case this Agreement shall be amended in accordance with its terms; or
b. to withdraw such proposed amendments in which case this Agreement shall continue in force unchanged.
5.4 If the Client determines that the Addition is to be carried out, full particulars of the Addition are to be recorded in a written memorandum to be appended to this Agreement at Schedule 3.
5.5 Time and materials charges will be based on the Company's then prevailing Billing Rates and must be paid in accordance with the procedure set out in Clause 2.3 above.
5.6 Additions will be carried out as part of and on the terms and conditions of this Agreement.
6. Limitation of Liability
6.1 The Company shall not be liable for any loss or damage of whatsoever nature suffered by the Client arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Client or arising from any cause beyond the Company's reasonable control.
6.2 The Company shall not be liable for any loss or damage of whatsoever nature suffered by the Client arising out of any matter which could reasonably have been expected to have been apparent to the Client at the time of acceptance testing.
6.3 The Company is not liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by the Client or for any wasted management time, failure to make anticipated savings or liability of the Client to any third party arising in any way in connection with this Agreement or otherwise whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.
6.4 Save as expressly stated in this Agreement, all conditions and warranties whether express or implied, statutory or otherwise, which relate to the condition or fitness for any purpose of the Materials or to the care or skill with which the Materials have or should have been (or, as the case may be, will or ought to be) prepared are hereby expressly excluded.
6.5 The Client accepts that the Company is in no way liable for any inaccuracies or misleading statements or representations made in any third party documentation supplied by the Company to the Client.
6.6 None of the clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of the Company or its appointed agents.
6.7 No matter how many claims are made and whatever the basis of such claims, the Company’s maximum aggregate liability to the Client under or in connection with this Agreement or any other agreement between the parties or any software related to this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by clauses 6.1-6.6 above or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to twice the amount of Assignment.
6.8 The Client agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Assignment Price has been calculated on the basis of the limitations and exclusions in this Clause 6 and that the Client will effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 6.
7. Warranty
7.1 The Company warrants that in fulfilling the Assignment it will perform the services with a high degree of professional expertise and skill.
7.2 The Company makes no warranty that performance or what is produced by virtue of the Assignment will be uninterrupted or error-free.
7.3 The warranty set out in clause 7.1 is exclusive of and in lieu of all other conditions and warranties, either express or implied, including without limitation those relating to merchantability or fitness for purpose.
8. Time
8.1 Whilst any target dates set out in the Assignment are not binding and for guidance purposes only, the Company shall use its reasonable endeavours to meet such targets.
8.2 Without prejudice to the terms of Clause 8.1, if any of the circumstances envisaged by Clause 2.7 above or any failure by the Client to adhere to the terms of this Agreement, lead to any delays, any target dates shall be extended so as to accommodate fully the effects upon the accomplishment of the Assignment.
8.3 To the extent that any delay is directly or indirectly caused by any act or omission of the Client, the Company shall be entitled to charge the Client for the effects of such delay on a time and materials basis.
9. Personnel
9.1 Neither party will, without the prior written consent of the other party, during the course of the Assignment or for one year thereafter solicit, make any offer of employment, employ or engage any of the other party's consultants or employees.
9.2 In the event of a breach of Clause 9.1, the defaulting party shall pay to the other a sum equal to 6 months' remuneration at the then current rate of the relevant employee or consultant including benefits in kind or if no current rate is available, at the last paid rate of the relevant employee or consultant including benefits in kind. This sum will be payable by way of liquidated damages and is agreed by the parties to represent fair compensation in such event.
9.3 The Company will use its reasonable endeavours to maintain continuity in the staff engaged on the Assignment.
9.4 The Company shall designate a project manager for the Assignment who shall report directly to the Client on the progress of the Assignment.
9.5 The Company’s personnel to the extent they work on the Client's premises, shall respect the internal regulations which have been communicated to them, without such respect implying any subordination to the Client.
9.6 The Client shall be liable for the health, security and safety of The Company’s personnel whilst they are on the Client's premises.
10. General
10.1 Subject to Clause 10.2, this written Agreement together with the Schedules, constitutes the party has entire agreement between the parties hereto relating to the subject matter hereof and neither relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this Clause 10.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court or arbitrator may allow reliance on the same as being fair and reasonable.
10.2 No change, alteration or modification to this Agreement shall be valid unless in writing and signed by duly authorised representatives of both parties.
10.3 If any provision of this Agreement or part thereof shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
10.4 The rights and obligations of the Client under this Agreement are personal to the Client and the Client undertakes that it shall not, without the prior written consent of the Company, assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
10.5 The Company reserves the right to sub-contract any of the work required to fulfil its obligations hereunder.
10.6 Any notice given pursuant hereto may be served personally or sent by pre-paid registered letter or recorded delivery to the addresses given hereabove. Such notice shall be deemed to have been duly served upon and received by the addressee, when served personally, at the time of such service or, when posted, 48 hours after the same shall have been put into the post correctly addressed and pre-paid.
10.7 Neither party shall be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority.
10.8 Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
10.9 Clause headings have been included in this Agreement for convenience only and shall not be considered part of, or be used in interpreting, this Agreement.
10.10 This Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
In order to book a fixed-price service using the online booking form, you are asked to state that you have read and agreed to these terms and conditions.
SCHEDULE 1
PARTICULARS OF THE ASSIGNMENT
Fixed-price service of computer
1. The price of a basic service of a computer is £34.00 + VAT at 17.5%, total £39.95
2. A fixed-price computer service includes:
a. Initial assessment and back-up of data.
Data stored on the Client’s computer is backed up to an external hard drive and stored for the duration of the Fixed-price Service. This back-up is stored safely until the Client has satisfactorily received their computer back at the end of the Service. An initial assessment of the condition of the Client’s computer is carried out.
b. Virus and malware scan.
This includes our “standard” scan for viruses and malware. Software that is generally used is PrevX, Grisoft’s AVG, and others. We cannot guarantee that the specified software will be used, but an up to date equivalent or better set of tools will be used.
For domestic Clients, if up to date protection is not in force, the option of AVG Free installation will be given, or advice on other options offered.
For commercial Clients, if up to date protection is not in force, the Company will give advice as to cost-effective protection options.
c. Disk de-fragment.
This will be an operating-system based de-fragmentation of all logical hard disks on the system.
d. Memory and hard disk check.
The hardware is checked for potential problems: the Client can then be advised whether it would be prudent to replace RAM or Hard disk in the near future.
e. Physical clean-up.
Dust will be removed from inside the computer, or from vents, and superficial marks removed from the casing.
3. A fixed-price computer service does not include:
a. Collection from or delivery to the Client’s location.
b. Replacement or additional hardware.
c. Re-installation of software for which the Client cannot supply licenses, should such reinstallation become necessary.
4. Optional extras, which may be agreed at booking time include:
a. Collection & delivery by Parcel Force
b. Collection & delivery by Mytechie Solutions Limited, within a specified area.
c. Installation of additional RAM.
d. Installation of additional hard disk storage, with data transfer from old disk.
e. Renewal of anti-virus software license on behalf of the Client.
The Company reserves the right to withdraw from or add to this list at any time, and without prior notice.
SCHEDULE 2
ASSIGNMENT PRICE
Fixed-price Computer Service £34.00
Collection & Delivery by Parcel Force £15.00
Packaging for collection/delivery by Parcel Force £5.00
Collection & delivery by MTSL £5.00
Installation of additional hardware £15.00 per item
NB. Does not include cost of hardware
Back-up of computer data to CD/DVD/Other £15.00
All items are subject to V.A.T. at the current U.K. rate.
PAYMENT TERMS
Payment is due on booking, collection or delivery.
Existing clients who have credit terms agreed may agree payment terms of 30 days from collection.
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