hcoms :: Disclaimer
Hayes Computing Solutions Ltd endeavours to provide its customers with the highest level of service at all times.
Terms of Trade
These "Terms and Conditions" will apply to and govern all Contracts under which " Hayes Computing Solutions Ltd ", its affiliates, agents or contractors acting on its behalf, agree to supply goods and/or services, and shall prevail over any terms and conditions of the Customer, whether referred to in the Customer's order, or in correspondence and elsewhere, or implied by trade custom practice or course of dealing. Any purported provisions to the contrary are hereby excluded or extinguished. The Contract and these Conditions constitutes the entire agreement between the parties. No variation of the Contract or these Conditions shall be binding upon the parties unless made in writing and signed by a duly authorised representative of each party. The Contract shall not constitute a partnership or agency agreement between the Company and the Client and neither party shall have the ability to bind the other by contract or otherwise.
Terms:
1. Definitions: “the Company” – Hayes Computing Solutions Ltd, “the Products” – any equipment or 3rd party software sold or licensed by the Company, “the Services” – any services provided by the Company, “the Goods” – the combined group of Services and Products, “the Client” – any person, organisation or company that contracts directly with the Company to purchase any of the Products or Services, “these Conditions” – these terms and conditions, “the contract” – the contract for the purchase and sale of Products and Services, "Conditions" means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company.
2. Application: agreements between the parties which deviate from these Terms and Conditions are not legally valid unless stipulated in writing. This also applies to all other oral arrangements, particularly telephone communications, as well as to this requirement of the written form.
3. Security: It is the customer's responsibility to ensure that prior to the Company starting work on its computer system (or any other electronic installation) that all critical data has been backed up, and that appropriate recovery procedures are in place.
4. Software Licensing: It is the customer's responsibility to comply with the terms of use, distribution, duplication and other requirements whether public or private in origin applicable applied to any software supplied through the Company.
5. Public Domain Software: In the case of software that is available as "freeware", "shareware" or otherwise supplied from the public domain, such software is supplied to the customer on an "as is" basis. The Company makes no warranty as to fitness for purpose, performance or as to freedom from embedded malicious software.
6. Maintenance of Protection: It is the customer's responsibility to ensure that the effectiveness of any 3rd party software supplied by the Company is maintained by acquisition (from the original developer if necessary), of such database files, programme patches or other revisions, as may become available from time to time.
7. Privacy: It is the Customer's responsibility to ensure that all applicable civil liberty legislation and personal privacy safeguards are complied with when using software supplied by the Company, both those enshrined in UK and EU law, and those included in any telecom's service contracts entered into by the Customer.
8. Third party rights: The parties agree that the terms of this Contract are not enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999.
9. Services: The Customer shall, at its own expense, supply the Company with all necessary documents, data, materials or other information relating to the Goods, within sufficient time to enable the Company to provide the Goods in accordance with the Contract. The Customer shall ensure the accuracy of all such documents, data, materials or other information. The Company may at any time without notifying the Customer make any changes to the Goods which are necessary to comply with any statutory requirements, or which do not materially affect the nature or quality of the Goods. The Goods to be provided are as agreed between the Customer and the Company (as defined in the quotation), together with any additions, deletions and changes agreed to in writing during the course of this Contract. Until such time as any addition, deletion or change is agreed in writing, the Company will, unless otherwise agreed, continue working on the Contract as if such a change has not been requested. The Company may use software segments or "library routines" developed by the Company in the development of the Customer's application. In this case the Company will retain sole copyright to those routines but will grant to the Customer a perpetual licence to use those routines within the application developed by the Company.
10. Orders: The Customer shall confirm an order to the Company in writing. The Customer shall send to the Company written confirmation of any order placed by telephone duly marked with any confirmation reference given by the Company, failing which the Company shall be entitled to charge the Customer the price due in respect of each order. The Customer shall be responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Company all necessary information in relation to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms. The quantity, quality and description of and any specification for the Products or Services shall be those set out in the Company’s quotation or acknowledgement of order.
11. Price: Prices charged in any quotation are exclusive of VAT, unless otherwise stated, and may be varied without prior notice.
12. Payment: Where credit terms are granted, payment shall be due strictly in accordance with the terms stated on the Company’s invoice. The Company reserves the right to suspend deliveries where payment is not received in accordance with any alternative terms of payment agreed in writing. Where payment is not made in accordance with these the Customer shall pay interest on any unpaid amounts calculated at 3% above HSBC Plc’s base rate for the time being in force calculated on a daily basis. No cash or other discount is allowed unless agreed in writing by the Company. If the Company is able to deliver some items comprising the Goods, the subject of a contract, but unable to deliver all such items due to causes beyond its control (including but not limited to the examples referred to hereof) the Customer shall pay for such items as are delivered.
13. Delivery: The dates for delivery of the Goods mentioned in any quotation or acknowledgement of orders are approximate only. Time shall not be of the essence in this contract Delivery may be made in whole or in part at the option of the Company, and where delivered by installments shall be invoiced separately and seen as separate contracts. If, in the case of the contract or any order involving more than one delivery, default is made in payment on the due date, The Company shall have the right to suspend any further deliveries or activities pending payment, or to terminate the contract in its entirety.
14. Copyright: Copyright of all material originated by the Company, either in the form of pre-contract documentation or as text, images, research papers or electronically stored code for the manipulation, transmission and presentation of information, remains vested in the Company. The Customer agrees to indemnify the Company against all liabilities costs, damage, damages and expenses which the Company may incur as a result of work done in accordance with the Customer’s specifications which involve infringement of any copyright, patent or other intellectual or property right.
15. Software: Where the Products or Services are, or include, software, the Customer shall enter into a licence for those Goods on such terms as the Company shall require. If requested, the Company will provide consultancy services in relation to the software, on such terms (including as to payment) as shall be agreed between the Company and the Customer.
16. Ownership of Goods: Title to the Goods shall only pass to the client upon payment in full of all sums owing or due to the Company, whether under contract or otherwise. Until such payment the client shall store the goods in such a way as to show that they are the property of the Company.
17. Risk: Risk in the Goods passes upon delivery to the client's premises. Where material is transmitted electronically, risk will be deemed to have passed to the client, upon the moment of transmission - not of receipt.
18. Indemnity: The Customer will indemnify the Company, its staff, contractors and agents for any loss or damage suffered or incurred as a result of failure to obtain any necessary license or consent to enter any premises, or premises being unsafe or unsuitable, or any failure of the client to comply with any conditions imposed by any other party.
19. Liability: The Company shall not be liable to the Customer by reason of any representation (unless fraudulent) or any implied warranty, condition or other item or any duty at common law, or under the express terms of this or any other contract, for any indirect, special or consequential loss or damage whatsoever (including but not limited to loss of profit, business, contracts or goodwill), costs, expenses or other claims for direct or indirect or consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise). The Company will not be liable for any loss, damage, cost, expense or injury of any kind, whether direct, consequential or otherwise, arising in connection with the execution of a contract or the use or failure of the goods supplied or any defect in them, or from any other cause whether or not due to the acts or omissions of the Company, its staff, contractors, or its agents, in excess of the contract invoice value. Nothing in this condition shall exclude or limit the company’s liability for personal injury or death arising from the Company’s negligence. No forbearance delay or indulgence by the company in enforcing the provisions of the Contract shall prejudice or restrict the rights of the Company nor shall any waiver of its rights operate as a waiver of any subsequent breach and any right power or remedy herein conferred upon or reserved for the Company is exclusive of any other right power or remedy available to the Company and each of its rights powers or remedies shall be cumulative
20. Warranty: The Company warrants that all new items of equipment supplied shall be free from material defect for the period of 12 calendar months from the date of invoice. Manufacturer's warranty shall supersede any warranty stated herein. 3rd party software shall be warranted by the software manufacturer. The Company disclaims, to the extent permissible by law, all liability for defects in software products or for
mis-configuration or misuse thereof. The Services shall be performed in a timely, professional and workmanlike manner. Software development is a complex activity and the Company does not warrant that any software that it develops will be free from all defects. Warranty claims may only be asserted by the direct Purchaser and cannot be assigned or transferred in any way.
21. Force Majeure: The Company shall not be liable to the Customer for any loss or damage which may be suffered by the Customer as a result of the delivery of the Goods being delayed, prevented, hindered or made uneconomic by reason or circumstances or events beyond the Company's control including, but not limited to:
- Act of God, or riot, strike, lock-out, trade dispute, labour disturbance, restriction or ban on overtime, accident, fire, flood or storm difficulty or increased expense or
- .Failure by the client to give adequate instructions or supply the necessary information in due time or
- Failure by any third-party to carry out their part of the work or otherwise perform their obligations when required..
22. Claims: All claims in respect of non-execution of the Contract must be made, in writing, and received by the Company no later than fourteen (14) days of the date of delivery to the Customer, the Customer's premises or in the case of electronic transmission, from the date of transmission (proof of transmission does not imply proof of receipt). Such notification should contain sufficient detail to enable the Company to respond to the claim.
23. Termination: The Company may terminate this Contract immediately if the Customer fails to pay any sum due under it on the due date (time being of the essence regarding payment) or immediately if the Customer commits a material breach of any term of this Contract and which (in the case of a breach capable of being remedied) has not been remedied within 7 days of a written request remedy the same from the Company. Any termination of this contract shall be without prejudice to any of the Company’s other rights or remedies. This sub-clause applies if the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt (being a company) goes into liquidation (otherwise than done for the purposes of amalgamation or reconstruction) or an encumbrance takes possession of or a receiver is appointed over any the property or assets of the Customer, or the Customer ceases or threatens to cease to carry on business or the Company reasonably apprehends that any of the above events is about to occur in relation to the Customer and notifies the Customer accordingly. If this sub-clause applies then, without prejudice to any other right of remedy available to the Company, The Company shall be entitled to cancel the contract or suspend any further deliveries under it without any liability to the Customer and if the goods have been delivered but not paid for, the price should become immediately due and payable, not withstanding any previous agreement or arrangement to the contrary.
24. Confidentiality: The Company and the Customer hereby agree: (a) that all information (written or oral), other than technical information, obtained from the other party is confidential and shall be used solely for the purpose of this Contract and shall not at any time be disclosed without the written consent of the other party except to such persons of each party and to such an extent as may be necessary for the execution of this Contract; (b) to provide all necessary precaution to ensure that all such information is treated as confidential and not disclosed by their employees, servants, agents or sub-contractors; (c) that any technical information that is clearly designated as confidential and received under this Contract shall be treated in accordance with the provisions of this clause for a period of 5 years from receipt. The above provisions of this clause shall not apply to any information which: is trivial or obvious; is or becomes public knowledge other than by breach of this Contract; is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party. Nothing herein shall be construed as to prevent the Company from using data processing techniques, ideas or know how gained during the performance of this Contract in the pursuit of its normal business, to the extent that this does not result in the disclosure of confidential information or a breach of any valid patents or copyrights of the Customer.
25. General: No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision. If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect. All third party rights are excluded and no third parties shall have any rights to enforce a Contract.