Effective 1 January 2007
Who We Are: These are the Terms and Conditions of Business of Clever Business Solutions Ltd of 8 Tewkesbury Close, Wellingborough, NN8 5YP (hereafter referred to as “CBS”, “we”, “our” or “us”).
1. PAYMENT:
New customers must pre-pay the first 2 orders placed with CBS. Payment is via cheque or wire transfer. Customer is responsible for sales and all other taxes associated with the order.
Net30 payment terms may be extended to businesses, educational or governmental institutions. CBS reserves the right to limit or revoke any extended credit at any time.
2. DELIVERY:
In the absence of specific shipping instructions, CBS will use its own discretion in choice of method of transportation and carrier. Currently, our standard method of shipping is via TNT. All claims for damage and loss, whether apparent or concealed, shall be filed by Customer with the carrier. CBS assumes no responsibility for any such damage or loss.
3. WARRANTY & LIMITATION OF LIABILITY:
Items are sold only with such warranties as may be extended by the manufacturer of the item. CBS makes no other warranty and there are no implied warranties of merchantability or fitness. In no event is CBS responsible for incidental and consequential damages, or for more than the allocable price of the defective product. Customer is responsible for installation and use in accordance with manufacturer's instructions. CBS employees are not authorized to alter this Warranty Policy.
4. REPAIR/RETURN POLICY:
Returns for repair, warranty exchange or credit will only be accepted if a return authorization has been obtained from CBS prior to returning any goods. Warranty replacement items will be sent via TNT Economy. If another shipping method is requested, Customer shall pay for the full amount of such shipping charges. All shipping charges associated with out-of-warranty and service repairs will be borne by Customer. Items not returned within 30 days (i.e. credit returns and warranty exchanges) will be billed for the full retail price.
5. RESTOCKING:
A restocking charge of 20% applies to all items returned after any agreed-upon trial or money-back guarantee period. No returns will be accepted after 60 days.
Who We Are: These are the Terms and Conditions of Business of Clever Business Solutions Ltd of Beckett House, 8 Tewkesbury Close, NN8 5YP, (hereafter referred to as “CBS”, “we”, “our” or “us”).
Who you are: The company named on the cover of this document of trading address also named on the cover of this document (hereafter referred to as “Company”, “Customer” or “you”).
Our Agreement: These terms and conditions govern the performance by us of the services described in this proposal (the “Services”). This Agreement supersedes all prior agreements, arrangements and understandings between you and us and constitutes the entire agreement relating to the Services. This Agreement shall apply to the exclusion of, and shall prevail over, any terms and conditions contained in or referred to in any documentation submitted by you or in any correspondence or otherwise.
Our Obligations: We agree to perform the Services using all reasonable care and in accordance with professional standards. We shall use reasonable endeavours to perform our obligations under this Agreement in accordance with any project timetable provided to you. However, time shall not be of the essence in this Agreement.
It is important that you understand the extent of the Services we provide. In performing the Services we will run automated reviews of files stored on your computer systems. These reviews will be conducted using proprietary PixAlert software technology which produces a list of files ranked according to certain criteria. Some of these files may then be inspected by a CBS employee or partner via a secure remote IP connection. Once this audit has been conducted, we will produce a report for you highlighting our findings. When you accept this proposal you are agreeing to provide us with sufficient access to your computer systems to carry out the Services.
We are not a law enforcement authority nor do we purport to provide advice regarding disciplinary measures for staff or to how to comply with employment, data protection, pornography or other civil or criminal laws. When we provide our report to you, you must exercise your own professional judgement and, where necessary, take appropriate legal and technical advice before acting on the content of the report.
Your Obligations: You agree to give us all information, instructions and assistance reasonably necessary to enable us to provide the Services. We cannot be liable for any loss or damage arising from reliance placed on any information given by you.
You are responsible for ensuring that all necessary legal, regulatory or other consents are in place prior to our performing the Services. Without prejudice to the generality of the foregoing, you must ensure that:
(i) all necessary consents from staff have been obtained for the purpose of the Data Protection Acts 1988 and 2003;
(ii) you have complied with all trade union agreements, other collective agreements or agreed work practices which apply to the Services;
(iii) you have an appropriate acceptable usage or similar policy in place which governs the use of computer systems in your organisation and that all of your staff who have access to the organisation’s computer systems have been provided with a copy of the policy.
You shall be solely responsible for any representations you make to your staff as a result of information you receive from us, including without limitation, any representations relating to the use or abuse of your computer systems.
Fees and Payment: Unless otherwise stated in this proposal, all charges shall be paid within 30 days of receipt of an invoice for the same from us. All amounts not paid when due and payable will bear interest from the date such amounts are due and payable at 1% per month. All charges are quoted exclusive of VAT which shall be payable in accordance with our invoice. In all cases, the amounts due under this Agreement will be paid in full without any right of set-off or deduction. You will remain liable to us for payment of our charges, expenses and disbursements irrespective of any arrangement for their payment by a third party. In every case you will be the addressee of our bill.
Communications: Except where otherwise specified, we will generally take our instructions from the Human Resource Manager, CEO or similar senior manager within your organisation and we will generally address our reports to the Human Resource Manager and to the CEO unless agreed otherwise or where circumstances make this unwise or impracticable. While we are happy to correspond by email, please bear in mind that we cannot guarantee the timeliness and the security of email communications or that information passing between us will enjoy status as privileged documents.
Confidentiality: We will keep strictly confidential any information obtained from you, except insofar as we are required by law or other relevant process to disclose details of your dealings with us. This duty does not apply to documents or information which we obtained or developed independently of any work done for you or which are in the public domain. From time to time, we are asked for names of individual clients, usually in the context of satisfying potential clients that we have the necessary expertise to service their needs. We assume that we may reveal the fact that we have provided services to you, unless you have indicated otherwise in writing.
Data Protection and Privacy: You shall comply with your obligations as a data collector under the Data Protection Acts 1988 and 2003 and we shall comply with our obligations as a data processor acting on your instructions under the Data Protection Acts 1988 and 2003. Therefore, you are solely responsible for the lawful collection, delivery, obtaining of consents and use of all data provided or made available to us. We will process such data in accordance with this Agreement and will only share data where it is necessary for the performance of this Agreement. You agree that we may aggregate anonymous, non-personal information in our database solely for the purposes of enhancing the effectiveness of our software.
Our Legal Relationship: This Agreement shall not constitute any party, the legal representative, partner or agent of the other nor shall any party or any successor of any party have the right or authority to assume, create or incur any liability or obligation of any kind express or implied against or in the name of or on behalf of any other party. The parties hereto enter this Agreement as principals for and on their own behalf.
Conflicts of Interest: We will seek to avoid potential conflicts of interest by ensuring that there are in place appropriate physical and technical safeguards and divisions of staff between those carrying out work on your behalf and those working on other potentially conflicting clients’ behalves. We reserve the right to act for such clients where such divisions and safeguards remain in place and you acknowledge that this will not give rise to a conflict of interest.
Intellectual Property Rights: The PixAlert name and trade marks are the valuable intellectual property of BioObservation Systems Limited. In addition, while performing the Services, CBS may use other proprietary tools and software which are owned or licensed by BioObservation Systems Limited. Nothing in this Agreement shall confer on you any rights to such tools or software and you will promptly notify us of any infringement or threatened infringement of any of our intellectual property or other right of which you become aware and you will provide reasonable assistance to us, at our expense, in connection therewith. We assert no rights over the content of any files or over any software which is owned or controlled by you and we operate on the basis that you have all necessary software licences, copyright clearances and other consents or authorisations required to enable us to perform the Services. In the event that there is a claim against us that our performance of the Services infringes any third party’s intellectual property rights and such claim relates to material obtained or received from you, you agree to indemnify us against any costs, losses, damages or liabilities arising in relation thereto.
Client Documents: If we are provided with custody of any documents, electronic files or other materials belonging to you, those will be retained during the course of the Services (unless you request their return). We will retain one copy of our reports and underlying data for a period of two years so as to deal with any follow-up questions or issues that may arise. Thereafter, we will either return or destroy all such data.
Health and Safety: When working at your premises or facilities, our personnel will comply with your standard workplace security, administrative, safety and other policies and procedures applicable to your own employees. You shall provide us with a copy of each such policy and procedure and shall notify us of any subsequent modifications or amendments thereto. To the extent that any of such policies or procedures prevents our personnel from performing our obligations under this Agreement, we will not be deemed to be in breach of this Agreement.
Exclusions and Limitations of Liability: We assume no responsibility and you shall indemnify us against any liability arising against us, our employees or agents, for loss, damage, or injury to any person or property, of whatever nature and whether direct or indirect, occasioned by, arising from, or due to:
(i) the breach by you of any applicable laws;
(ii) representations made by you to your staff whether made on reliance of the Services or otherwise;
(iii) the inaccuracy or unlawfulness of any information provided by you to us;
(iv) any cause over which we do not have direct control, including problems attributable to your computer hardware or software (including computer viruses), telephone or other communications, Internet Service Providers, delays, non-deliveries, mis-deliveries, or service interruptions arising from an event of force majeure;
(v) any infringement of privacy rights, duty of confidentiality, breach of contractual duty or breach of the Data Protection Acts 1988 and 2003;
except and to the extent of liabilities resulting directly from the knowing or wilful misconduct of CBS.
Notwithstanding any other provisions of this Agreement, nothing shall exclude or limit either party’s liability for the following:
(i) death or personal injury resulting from that party’s negligence;
(ii) that party’s fraud or statements made fraudulently by that party; or
(iii) any other acts or omissions for which the Irish law prohibits the exclusion or limitation of liability.
We have an interest in the limitation of liability of our employees and accordingly, you agree not to bring any claim of any kind against any of our employees personally.
Neither party shall be liable for any loss of profit, loss of business, loss of goodwill, loss of savings, loss of anticipated savings, whether direct or indirect, or for any indirect loss or consequential loss whatsoever and howsoever caused (even if caused by our negligence and/or breach of contract and even if we were advised that such loss would probably result).
If notwithstanding the above exclusions and limitations, we are found to be liable to you, our total liability for any claims, losses, damages or expenses whatsoever and howsoever caused (even if caused by our negligence and/or breach of contract) shall be limited for each event or series of linked events as follows:
(i) in relation to direct physical damage to your tangible property caused solely by our negligence, or the negligence of our employees, agents or subcontractors to a maximum sum of €100,000;
(ii) in relation to liability outside the scope of (i) to a maximum sum equal to the total charges (excluding VAT) actually paid by you to us under this Agreement.
Warranties: We warrant that:
(i) we have the necessary skill to supply the Services;
(ii) we will carry out the Services with reasonable care and skill
(iii) we have the right to enter into this Agreement and provide the Services hereunder. All other warranties express or implied, in relation to the Services are hereby excluded to the fullest extent permitted by law.
Statutory and Regulatory Obligations: You understand and accept that, we may be required in certain circumstances to make reports to regulatory and law enforcement authorities, or to disclose documents or information or take other action, as a result of information received by us or matters which come to our attention during the course of the provision of the Services. Where appropriate and permitted we will advise you in advance of any action we may be required to take.
Force Majeure: Except for failure to make payments when due, neither party shall be liable to the other by reason of any failure in performance of this Agreement if the failure arises from an event outside of its reasonable control including, without limitation, the unavailability or faulty performance of communication networks or energy sources, any act of God, any act or omission of governmental or other competent authority, fires, strikes, industrial dispute, riots, war, inability to obtain materials, embargo, refusal of licence, theft, destruction, denial of service (DoS) attacks, unauthorised access to computer systems or records, programs, equipment, data, or services.
Term and Termination: This Agreement shall commence on the date of acceptance of this proposal and shall continue until the Services have been completed. If this Agreement is terminated prior to completion of the Services, any accrued charges shall remain payable once invoiced. Upon payment of such charges each of the parties will promptly return to the other all property of the other then in its possession. We may suspend or terminate the Services without notice if you shall fail to pay any charges when due.
Invalidity and Severability: If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability shall not affect the other provisions of this Agreement and all provisions not affected shall remain in full force and effect. Both parties will attempt to substitute the unenforceable clause with a valid and enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
Dispute Resolution and Governing Law: We hope that you will not have any cause for complaint. If, however, you do have any problem or complaint about us, please raise it in the first instance with your CBS representative and, if the issue cannot be resolved, with our Managing Director. These terms of business will be governed by and interpreted in accordance with the laws of England.
Any dispute arising out of these terms of business or our provision of legal services to you will be submitted in the first instance to voluntary mediation, and if mediation is not successful, then to arbitration by an arbitrator mutually agreed between us. A dispute relating to the amount of our fees, disbursements or expenses shall be submitted to the exclusive jurisdiction of the High Court.
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