IP Solutions UK Limited – Terms & Conditions
This is dated: 03/07/14
The definitions and rules of interpretation in this clause apply in each and every Contract (as defined below):
“Commencement Date” means the date of signature of the relevant Order Form or the date of the Service being provided by IPS whichever is the later.
“Contract” means the entire agreement between IPS and the Customer for the Goods and/or Services on the terms set out in these Terms and all other terms set out in:
(1) an Order Form; and/or
(2) a Proposal; and/or
(3) any applicable Product Schedules;
accepted by IPS in accordance with clause 2.2, and any other terms which IPS has specifically agreed to in writing.
“Customer” means the person(s), firm or company with whom IPS makes a Contract as identified in the Order Form or Proposal as the case may be, and any reference to “you” and “your” is a reference to the Customer.
“Deliverables” means all documents, products and materials developed by IPS or a Third Party Supplier or its agents, subcontractors, consultants and employees in relation to Goods and/or Services in any form, including computer programs, data, reports and specifications (including drafts).
“Delivery Point” means the place where delivery of the Goods is to take place under clause 6.
“Goods” means the goods (including any part or parts of them) to be supplied by IPS to the Customer as set out in the Order Form or Proposal (if any).
“Group” means, in relation to a company, that company, any company of which it is a Subsidiary (its holding company) and any other Subsidiary of such holding company; and each company in a group is a member of the group. Unless the context requires otherwise, the application of the definition of Group to any company at any time shall apply to the company as it is at that time.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world in the Goods, Services, Deliverables, Pre-Existing Materials and/or IPS’s Equipment.
“IPS” means IP Solutions UK Limited whose registered office is at 18 Hand Court, London, UK, WC1V 6JF and whose registered company number is 4213760, and any reference to “us” “we” and “our” is a reference to IPS.
“IPS’s Equipment” means any equipment, including tools, systems, cabling or facilities, provided by IPS or its subcontractors or identified in an Order Form or Proposal and used directly or indirectly in the supply of the Goods and/or Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.
“Minimum Term” means the minimum term of the Contract which shall commence on the Service Commencement Date and end following the period set out in the Order Form or Proposal.
“Order Form” means the form prepared by IPS in respect of a request for the Goods and/or Services.
“Pre-existing Materials” means all data, documents, information and materials provided by IPS relating to the Goods and/or Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications.
“Personal Data” means any personal data, as defined in the Data Protection Act 1998, relating to the end user of the Goods and/or Services which is held by IPS on behalf of the Customer.
“Product Schedule” means the specific terms and conditions applicable to the Goods and/or Services provided to the Customer, as set out at www.ipsolutions.co.uk/terms. More than one Product Schedule shall be referred to collectively as “Product Schedules”.
“Proposal” means the written proposal prepared by IPS for the Customer for the provision of any combination of Goods and Services including (without limitation) internet services, voice services, managed hosting services, consultancy services and/or mobile services.
“Renewal Term” means the automatic renewal of the Minimum Term asset out in clause 3.3.
“Services” means the Services to be provided by IPS under the Contract, including Third Party Supplier services identified in the Proposal and/or Order Form, and including the Goods used in performing the Services.
“Service Commencement Date” means the date that IPS notifies the Customer that the Services are live.
“Scheduled Maintenance” means any maintenance to any hardware, networks or systems affecting the provision or use of the relevant Goods and/or Services which is notified to the Customer by IPS at least 14 days prior to such maintenance taking place.
“Subsidiary” means in relation to a company (a holding company) means a subsidiary (as defined in section 1159 of the Companies Act 2006) and any other company which is a subsidiary (as so defined) of a company which is itself a subsidiary of such holding company.
“Termination Payment” means the payment due following an early termination of the Minimum Term, as set out in clause 3.2.
“Terms” means these Terms and Conditions.
“Third Party Supplier” means the third party selected by IPS to enable IPS to perform the Services or to supply the Goods.
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.
2. APPLICATION OF TERMS
2.1 These Terms shall:
2.1.1 apply to and be incorporated into the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained, or referred to, in the Order Form, the Proposal, any Product Schedule or any document supplied by the Customer (unless such terms expressly state that they prevail over these Terms), or implied by law (to the fullest permitted extent), trade custom, practice or course of dealing.
2.2 The Order Form, Proposal, or the Customer’s acceptance of a quotation for Services by IPS, constitutes an offer by the Customer to purchase Goods and/or Services on these Terms and the terms of the Product Schedules. No offer placed by the Customer shall be accepted by IPS other than:
2.2.1 by an Order Form being countersigned by IPS;
2.2.2 by a Proposal acceptance form being countersigned by IPS; or
2.2.3 by IPS confirming via email its acceptance of an Order Form signed by the Customer; or
2.2.4 (if earlier) by IPS starting to provide the Services or supply the Goods, when a contract for the supply and purchase of the Goods and/or Services on these Terms and the terms of the Product Schedules will be established.
2.3 It is your responsibility to evaluate the Goods and/or Services being purchased, including any specific functionality requirement, prior to submitting a signed Order Form or Proposal to IPS. Upon our acceptance of an Order Form and/or Proposal you will be bound to purchase the Goods and/or Services referred to.
2.4 The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract which shall be governed by the Terms in all dealings between the parties without exception.
2.5 Quotations, Proposals and Order Form are given by IPS on the basis that no Contract shall come into existence except in accordance with clause 2.2. Any such documents are valid for a period of 30 days from their date, provided that the IPS has not previously withdrawn it.
2.6 The Contract constitutes the entire agreement between the parties in relation to its subject matter. The Customer acknowledges that it has not relied on any warranty, statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
3.1 The Minimum Term is the term stated in the Order Form or Proposal.
3.2 If the Customer terminates the Contract during the Minimum Term the Customer shall pay to IPS an amount equal to the balance of payments that would otherwise have been due from the Customer for the remainder of the Minimum Term (“Termination Payment”). In the event that payments under the Contract are based on usage of the Goods and/or Services, or rebates rather than recurring charges, the Termination Payment shall be calculated by reference to the average monthly usage charge, or the rebate paid to the Customer by IPS, for the period prior to termination.
3.3 Following the Minimum Term, the Contract will automatically renew for a further 12 month term (“Renewal Term”), unless the Customer provides IPS with notice in writing to terminate the Contract at the end of the then current Minimum Term or Renewal Term, such notice must be received by IPS at least 90 days prior to the end of the Minimum Term or any subsequent Renewal Term.
3.4 Further to any request from the Customer to terminate the Contract, IPS shall issue a Contract Cancellation Form or email detailing the amounts payable by the Customer prior to termination and in order for the termination to take effect. The Customer must either sign the Contract Cancellation Form issued by IPS and return this to IPS, or accept the terms of the termination email sent by IPS, and the Customer must pay all amount stated on the Customer Cancellation Form or email within 14 days of the date of such form or email before the termination will be valid. If such payment is not made within 14 days of the date of IPS’s Contract Cancellation Form or email the Customer’s request to terminate shall be deemed to have been withdrawn and the Contract shall continue in full. Until any valid termination takes effect, IPS shall be entitled to continue to charge the Customer for all fees due under the Contract.
4. PROVISION OF THE SERVICES/GOODS
4.1 IPS agrees to:-
4.1.1 exercise reasonable care and skill in providing the Services and/or Goods;
4.1.2 use its reasonable endeavours to provide the Services and/or Goods and deliver the Deliverables to the Customer;
4.1.3 comply with all laws and regulations enforceable at law relevant to the provision of the Services and/or Goods.
4.2 IPS may:-
4.2.1 for operational reasons, change the technical specification of the Services and/or Goods provided that any such changes do not have a materially adverse effect on the performance or provision of the Services and/or Goods;
4.2.2 suspend the Services for operational reasons (such as maintenance or service upgrades) or because of matters outside of its control and within the control and/or ambit of the Third Party Supplier. In the event IPS has to suspend the Services or change the technical specifications IPS shall give the Customer as much notice as is reasonably possible;
4.2.3 IPS may, from time to time and without prior notice, change the Services and/or Goods in order to comply with any applicable safety or statutory requirements. If IPS requests a reasonable change to the Services and/or Goods for any other reason, the Customer shall not unreasonably withhold or delay consent to such change.
4.3 IPS will use reasonable endeavours to perform its obligations under the Contract in line with any agreed timetable set out in the Proposal or Order Form. However, time shall not be of the essence in relation to any aspect of the Contract.
4.4 Our support hours are from 09:00 to 17:30 Monday to Friday excluding bank holidays in England (“Support Hours”). If you become aware of an interruption to any Service (“Service Interruption”), please call our main customer services telephone number specified on our website and obtain a fault log number. The time at which you obtain the fault log number shall be the “Service Interruption Notification Point”.
4.5 In case of a Service Interruption, you may apply for service credits in accordance the terms of the relevant service level agreement (if any) contained or attached to the relevant Order Form, Proposal or Product Schedule if you have been provided with one. Service credits are only available for Service Interruptions occurring during Support Hours, i.e. no more than 8.5 hours’ worth of service credits are available for any single day. No credits shall be made if you have not been provided with a specific service level agreement or the Service Interruption is attributable to factors beyond our reasonable control, including but not limited to Scheduled Maintenance, malicious attacks to any infrastructure associated with the provision or use of the Goods and/or Services, downtime caused by third parties outside of our control, downtime caused by internet service providers, installation of third party software onto our servers.
4.6 Service credits are not available at any time when the Customer is in breach of any of its obligations under any Contract.
4.7 Service credits only apply against future charges incurred after the relevant Service Interruption began and in relation to the same Contract. Service credits shall not be converted into a cash refund, or used against charges made under other Contracts. If we give notice to terminate a Contract, we will deduct any service credits relating to that Contract from the final invoice in relation to that Contract.
4.8 If we are required to arrange an on-site visit due to a Service Interruption, IPS reserves the right to charge a “fault not found” fee, should the on-site visit identify that the cause of the Service Interruption is not our responsibility. This may include (but is not limited to) power surges, outages, faulty equipment other than any Goods, and damage to equipment provided by any telecommunications provider.
4.9 A claim for service credits can only be made within a maximum of 5 working days after the Service Interruption began. A claim should be made in writing to our registered address.
4.10 In the absence of any specific service level agreement, as specified in clause 4.5, IPS will respond to notifications of Service Interruptions and associated communications received by telephone or email within 4 hours during the Support Hours. IPS does not provide any assurance or guarantee in relation to the resolution time for any Service Interruption.
4.11 The Customer acknowledges that in relation to any Goods or Services for the provision of telephone calls, call quality depends on both the specification and availability of the broadband service to which the Customer is connected and also on the IP or telecommunications network to which the person being called is connected.
4.12 Where the Customer is provided with a telephone number (including a code) as part of the Service, then that code and telephone number belongs to IPS and the Customer will have no right to keep that number nor to sell, dispose, port or transfer that number at any time. IPS will use its reasonable efforts to ensure that the Customer is able to keep the number during the period of the Contract but IPS reserves the right to change the telephone number on reasonable notice at its sole discretion.
4.13 If the Services include any mobile voice recording services, this will be made available via the mobile voice recording application which the Customer must activate on their mobile handset in accordance with the instructions supplied by IPS. Use of mobile voice recording service requires the Customer’s mobile handset to make calls to access the recording service. These calls may be chargeable to the Customer by their mobile service provider.
4.14 The Customer agrees to indemnify IPS and accept full responsibility for any loss or damage suffered by IPS as a result of any act or omission by the Customer in connection with the provision of Services which results in a failure to adhere to TPS (Telephone Preference Service) and/or CTPS (Corporate Telephone Preference Service), or any other requirement under the Privacy and Electronic Communications (EC Directive) Regulations 2003 or any replacement legislation.
5.1 We will notify you following the installation and/or setup of the Goods and/or Services, and of the date of the completion of the installation/setup, which shall also be the Service Commencement Date. This provision applies equally to new Goods and Services and upgrades of existing Goods and Services. If any parts of the Service commence on different dates, each part of the Service shall have its own individual Service Commencement Date, and therefore its own individual Minimum Term and Renewal Term thereafter. Where elements of the Service have different Service Commencement Dates, they will each be treated as individual and distinct Contracts for any termination purposes.
5.2 Charges shall start to accrue for the Goods and/or Services from the Service Commencement Date. Where the Goods and/or Services replace existing Goods and/or Services, charges under the replaced Goods and/or Services shall stop accruing at this time. Where you unreasonably delay any troubleshooting, installation or re-installation, we may treat an earlier date as the Service Commencement Date for the purposes of this clause 5.
5.3 To enable IPS to carry out its obligations and exercise its rights under the Contract, the Customer shall provide IPS (and/or its contractors and suppliers) with such access to your offices or other relevant locations as IPS shall reasonably require, subject to reasonable advance notice. Any period of delay in providing IPS (and/or its contractors and suppliers) with access shall be excluded from any service level calculations.
5.4 The Customer shall indemnify IPS for any charges levied on IPS by its third party suppliers as a result of that third party supplier not being permitted access to your offices or other relevant locations as previously arranged and agreed with The Customer. The Customer shall be entitled to see reasonable documentary evidence attesting to such incurred charges for aborted visits by the third party supplier.
5.5 IPS shall be entitled to bill for the services contracted for from the originally anticipated delivery date or after 90 days from the date of the Contract, whichever is the sooner, for the services if the reason that IPS is unable to deliver any such services is due to the Customer’s failure (or that of its representatives) to comply with the Contract and/or to provide access, facilities or other information which IPS reasonably requires in order to complete the installation and/or delivery, including but not limited to everything necessary relating to number porting, cat5e cabling and the provision of a suitable LAN.
6.1 The quantity and description of the Goods shall be as set out in the Order Form and/or Proposal.
6.2 All samples, drawings, descriptive matter, specifications and advertising issued by IPS and any descriptions or illustrations contained in IPS’s website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this Contract shall not be construed as being a sale by sample.
6.3 The Delivery Point shall be as set out in the Order Form, together with full details of the charges and costs associated with delivery. In the event that such details are not stated on the Order Form, IPS shall be entitled to charge the Customer for all reasonable delivery costs and charges associated with the delivery of the Goods.
6.4 The Customer shall take delivery of the Goods from the Delivery Point immediately upon delivery. Any dates specified by IPS for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
6.5 Subject to the other provisions of these Terms IPS shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods, nor shall any delay entitle the Customer to terminate or rescind the Contract. For the avoidance of doubt, this shall include any long lead times experienced in the supply of any Goods of Services, for example, the lead time for installation of fibre broadband can be in excess of 9 months.
6.6 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready, or IPS is unable to deliver the Goods by the time specified in the Order Form and/or Proposal because the Customer has not provided appropriate instructions, documents, licences or authorisations:
6.6.1 the Goods shall be deemed to have been delivered;
6.6.2 risk in the Goods shall pass to the Customer; and
6.6.3 IPS may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
6.7 The Customer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading and/or loading the Goods.
6.8 IPS may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
6.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
7. NON-DELIVERY OF GOODS
7.1 The quantity of any consignment of Goods as recorded by IPS on despatch from IPS’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
7.2 IPS shall not be liable for any non-delivery of Goods unless the Customer gives written notice to IPS of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
7.3 Any liability of IPS for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
8. TITLE IN THE GOODS
8.1 Ownership of the Goods shall not pass to the Customer until IPS has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to IPS from the Customer on any account.
8.2 Until ownership of the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as IPS’s bailee;
(b) store the Goods (at no cost to IPS) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as IPS’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on IPS’s behalf for their full price against all risks to the reasonable satisfaction of IPS. On request the Customer shall produce the policy of insurance to IPS.
8.3 IPS shall be entitled to recover all payment due under the Contract notwithstanding whether any ownership of the Goods has passed from IPS to the Customer.
8.4 The Customer grants IPS, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
8.5 Where IPS is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by IPS to the Customer in the order in which they were invoiced to the Customer.
9. THE GOODS
9.1 The extent of IPS’s liability in relation to the supply of any Goods shall be limited to IPS using reasonable endeavour to transfer to the Customer the benefit of any warranty or guarantee given to IPS by the manufacturer of the Goods.
9.2 IPS shall not be obliged to assist the Customer with any claim under any warranty provided by a manufacturer of the Goods, as required by clause 9.1 if:
(a) the Customer makes any further use of such Goods after giving a notice to IPS that the Goods do not comply with a manufacturers’ warranty;
(b) the defect arises because the Customer failed to follow the manufacturers or IPS’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of IPS following any instructions supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of IPS;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
9.3 Except as provided in this clause 9, the Supplier shall have no liability to the Customer in respect of the Goods.
10.1 Without prejudice to any other rights or remedies which the parties may have, IPS may terminate the Contract without liability to the Customer immediately on giving notice to the Customer if:
10.1.1 the Customer fails to pay any amount due under the Contract under the terms of clause 13 following the provision of 7 days’ notice to the Customer of the same by IPS; or
10.1.2 the Customer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of it being notified in writing of the breach; or
10.1.3 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; or
10.1.4 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
10.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Customer; or
10.1.6 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or
10.1.7 a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
10.1.8 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
10.1.9 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
10.1.10 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1.3 to clause 10.1.9 inclusive; or
10.1.11 the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
10.1.12 there is a change of control of the Customer (as defined in section 1124 of the Corporation Tax Act 2010) that we have not given our prior written consent); or
10.1.13 the Customer encumbers or in any way charges any of the Goods; or
10.1.14 IPS reasonably suspects that the Customer is miss-using the Goods and/or Services in breach of any Contract terms or legal requirements.
10.2 On termination of the Contract for any reason:
10.2.1 the Customer shall immediately pay to IPS an amount equal to any outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, IPS may submit an invoice, which shall be payable immediately on receipt;
10.2.2 the Customer shall immediately return all of IPS’s Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then IPS may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
10.2.3 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
10.3 On termination of this Contract under this clause 10, IPS shall end the provision of all Services provided under the Contract.
10.4 The Contract may be terminated by IPS at any time by giving the Customer 3 (three) months’ written notice.
10.5 On termination of the Contract (however arising), clauses 10, 11, 12, 13, 14 and 20 shall survive and continue in full force and effect and IPS’s (but not the Customer’s) rights contained in clause 8 shall remain in full force and effect.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 As between the Customer and IPS, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the party that supplied them.
11.2 IPS licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Goods, Deliverables and/or the Services in the manner anticipated under the Proposal and/or Order Form. If the Contract terminates or is materially breached by the Customer, this licence shall automatically terminate.
11.3 The Customer must not, without the prior written consent of IPS, copy, de-compile or modify any Intellectual Property Rights, (including those contained in any software), nor copy any manuals or documentation (including the Pre-Existing Materials and the Deliverables) supplied to the Customer by IPS.
11.4 IPS may use The Customer’s logo, trademark, and/or name with respect to a specific advertisement, promotion or other marketing material or event in connection with the sale and promotion of its services to other actual or potential customers.
11.5 Subject to clause 11.1, nothing in this Contract shall entitle the Customer to use any intellectual property in connection with the Goods or Services without the prior written consent of IPS.
12.1 Each party shall keep in confidence any information relating to the other party (whether written or oral howsoever stored) of a confidential nature (including software and where relevant manuals) obtained under or in connection with this Contract and shall not without written consent (such consent not to be unreasonably withheld or delayed) of the other party disclose that information to any person other than:-
12.1.1 their employees or professional advisers;
12.1.2 the employees of a Group company who need to know the information in order to fulfil the party’s obligations under this Contract or in order to provide or receive the Services.
12.2 The Customer shall keep in strict confidence any information (whether written or oral and howsoever stored) relating to the Services. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to IPS, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
12.3 This clause 12 shall not apply to:-
12.3.1 any information which is in the public domain other than through a breach of this Contract;
12.3.2 information lawfully in the possession of the recipient before the disclosure under this Contract took place;
12.3.3 information obtained from a third party who is free to disclose it; and
12.3.4 information which a party is requested to disclose and, if it did not, would be required by law to do so.
13.1 The Customer shall pay the charges for the Goods and/or the Services as set out in the Order Form and/or the Proposal (“the Charges”).
13.2 Payment for the Goods and/or Services shall be made as stated in the Order Form and/or the Proposal. In the absence of any agreed payment terms, payment shall be made by the Customer to IPS within 14 days of the invoice date.
13.3 All Charges are exclusive of VAT. VAT at the rates as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods will be payable by the Customer and specified on all invoices.
13.4 Time for payment of the Charges shall be of the essence. Without prejudice to any other actions available to IPS, IPS may suspend all Services and/or delivery of Goods in the event that any Charges are not paid in accordance with the terms of the Contract until all such Charges are settled in full.
13.5 All payments payable to IPS under the Contract shall become due immediately upon termination of this Contract.
13.6 If the Customer fails to pay IPS any sum due pursuant to the Contract the Customer shall be liable to pay interest to IPS on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. IPS reserves the right to claim interest, costs and/or compensation under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).
13.7 The Customer will be responsible for all Charges incurred in respect of any Services even if such Charges were incurred through, or as a result of, fraudulent or unauthorised use of the service. IPS may, but is not obliged to, detect unauthorised or fraudulent use of the services.
14. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
14.1 This clause 14 sets out the entire financial liability of IPS (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
14.1.1 any breach of the Contract;
14.1.2 any use made by the Customer of the Goods, the Services, IPS’s Equipment, the Pre-existing Materials, the Deliverables or any part of them; and
14.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
14.2 Save where expressly set out otherwise, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these Terms limits or excludes the liability of IPS:
14.3.1 for death or personal injury resulting from negligence; or
14.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by IPS.
14.4 Subject to clause 14.3 and 14.5, IPS’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price actually paid for the Goods and/or Services during the 3 months prior to the Customer incurring any losses or damages.
14.5 Subject to clause 14.3, IPS shall not be liable for loss of profits, loss of business, loss of data, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
15.1 IPS may vary these Terms from time to time by updating the copy of these Terms displayed at http://www.ipsolutions.co.uk/terms and IPS will notify the Customer of such changes. IPS may also vary the terms of each Product Schedule from time to time by updating the copy of the terms of each Product Schedule displayed at http://www.ipsolutions.co.uk/terms,and IPS will notify the Customer of such changes. IPS may vary any details set out in an Order Form or Proposal, including any charges, by providing the Customer with written notice of any such changes (including via email) at least 28 days prior to such changes taking effect.
15.2 The Customer may dispute any material change to the Contract made under clause 15 by providing IPS with written notice within 28 days of the Customer’s receipt of the notice made under clause 15.1 setting out the reason for its dispute. The party’s will then enter into negotiations in good faith in order to resolve the dispute. If reasonable efforts have been made to reach an agreement but the parties have failed to resolve the dispute, the Customer may terminate the Contract on providing 1 month’s written notice to IPS. Any such notice from the Customer to terminate following a material change shall be null and void in the event that IPS withdraws the disputed change within 28 days of receipt of such notice from the Customer.
16.1 Each right or remedy of IPS under this Contract is without prejudice to any other right or remedy of IPS whether under this Contract or not.
16.2 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.3 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable and, to the greatest extent possible, achieves the parties’ original commercial intention.
16.4 Failure or delay by IPS in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.5 Any waiver by IPS of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed as a waiver of any subsequent breach or default and shall in no way effect the other terms of the Contract.
16.6 The Customer undertakes to indemnify and hold harmless IPS, its agents, the Third Party Supplier and its respective assigns and licensees, from and against any actions, demands, proceedings, claims, costs (including without limitation legal costs), expenses, damages incurred or suffered by them as a result of a breach or threatened breach of this Contract by the Customer.
16.7 Each provision set out at clauses 16.1 – 16.6 is to be construed as a separate provision so that if for any reason one or other of the provisions is held invalid, unreasonable or unenforceable in any circumstances and the other provision shall continue in force and effect notwithstanding termination of this Contract.
16.8 Unless expressly provided in this Contract, no term of this Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
16.9 To the extent that any provision of these Terms conflicts with any provisions in any other documentation provided to the Customer the Terms will prevail in all circumstances.
16.11 Each Party shall comply with its obligations under the Data Protection Act 1998.
17. RESTRICTION ON ASSIGNMENT
17.1 The Customer shall not be entitled to assign any of its rights or obligations under the Contract without the prior written consent of IPS.
18.1 Any notice to be served on either party shall be in writing and delivered by hand or sent by prepaid post to the addressee at the following address:-
To IPS: IP Solutions UK Limited, 18 Hand Court, London, WC1V 6JF.
To the Customer: the Customer’s address shown on the Proposal or any address the Customer notifies to IPS in writing as an address to which invoices should be sent or, if the Customer is a Company, its registered office.
18.2 A notice or other communication required to be given under or in connection with the Contract shall not be validly served if sent by email.
19. THIRD PARTY FINANCE
19.1 This clause 19 applies to all Contracts which are being funded by the Customer using third party finance services, including Cisco Finance.
19.2 IPS will only deliver hardware if (i) credit clearance is provided by the third party finance provider, and (ii) the Customer signs and returns all paperwork and completes all requirements necessary for the third party finance service to release payment to IPS. The Customer will use all reasonable endeavours to comply with this clause as soon as possible following IPS accepting a Contract.
19.3 Upon the Customer’s compliance with clause 19.2, IPS will deliver such hardware by the earliest of within 60 days.
19.4 Should IPS not be able to install any hardware within 14 days of delivery then IPS reserve the right to invoice the Customer for the full term and value of the capital element as per the Order Form. Alternatively the Customer may sign a hardware ‘inception’ letter provided by the third party finance service to confirm they have received the hardware.
19.4 Where the third party finance service are invoicing the Customer for the hardware/capital fees per month as well as the Service fees per month, at the end of the term and agreement with the third party finance service, IPS will commence the billing of the Service element of the fees to the Customer and the Customer will enter into a 12 month rolling minimum term with IPS for the Service Charges at the price originally specified and agreed in the original Order Form.
20. FORCE MAJEURE
IPS shall have no liability to the Customer under the Contract if it is prevented from, or delayed, in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of IPS or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors (including in particular the Third Party Supplier.
21. GOVERNING LAW AND JURISDICTION
21.1 This Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with English and Welsh Law.
21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contracts subject matter.
22.1 The Customer agrees that during the continuance of this agreement and for a period of 12 months following termination thereof (however arising) that it shall not directly or indirectly canvass, or seek to solicit any of IPS’s staff, agents, or contractors without paying to IPS 30% of the staff, agent or contractors annual gross salary or charge paid by IPS to that person as a genuine pre-estimate of the loss that IPS would suffer as a result.
23. DISPUTE RESOLUTION
23.1 If any dispute arises in connection with this agreement that cannot be dealt with via discussion with IPS’s Customer Services department, the parties will attempt to settle it by:
(a) firstly, a senior manager of the Customer and IPS exchanging full details of the dispute and then meeting to seek to resolve the dispute;
(b) if 23.1 (a) is not achieved, secondly, a Director/CEO of the Customer and IPS exchanging any further details relating to the dispute and then meeting to seek to resolve the dispute;
(c) if 23.1 (a) or (b) is not achieved, thirdly, the parties will attempt to settle the dispute by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR within 7 days of a party requesting a mediator be appointed and the mediation shall take place in London within 7 days of the mediator’s appointment.
23.2 During the process of resolving a dispute in accordance with clause 23.1, the Customer will not issue any court proceedings.