Terms & Conditions
Your attention is drawn in particular to the provisions of clause 21 which explains how We limit Our liability.
GENERAL
In these Conditions, the Rate Schedule and every Quote, Order, Plan contract, or other document or arrangement in connection with the supply of Goods or Services by Dynamics 365 Cloud the following words have the following meanings:
“After Hours” means from 17:30 – 08:30 hours Monday to Friday and all day Saturday and Sunday, including Public Holidays;
“Business Hours” means Monday to Friday from 08:30 to 17:30 hours excluding Public Holidays;
“Client”, “You” or “Your” means a person described in an Order Confirmation Form who seeks or obtains a quote for, or who orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears and order is placed, and in any case each of their heirs, successors and assigns;
“Commitment Term” means the minimum period of Our agreement with You for the provision of Services by Us to You as described in our Quote to You or as renewed in accordance with clause 3.2;
“Conditions” means these terms and conditions;
“Goods” means any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things;
“Infrastructure” means all or any of the supply of electricity or other utilities, the provision of services by any cloud service provider, telephone or other communication network providers, the condition of your premises and your existing equipment.
“Order” means any order requested by You to Us for Goods or Services in any form;
“Order Confirmation Form” means Our order confirmation form or email describing You, the Services, the Goods, the place for delivery of the Goods and the price for such Goods and/or Services;
“Period” means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and the You as the period during which some Services will be provided;
“Plan” means any arrangement between Us and You (whether alone or in conjunction with any other person) for Services (including unlimited support) and/or the provision of Goods provided by Us under an arrangement in connection with Work agreed to be done or progressed for or on behalf of You or any other person at Your request, including as set out in a Plan Schedule;
“Plan Schedule” means the key terms applicable to Plans as set, and as may be varied by Us, from time to time in our reasonable discretion as previously notified to You;
“Public Holidays” means any day which is a public holiday throughout England & Wales;
“Quote” means a quote for Goods and/or Services provided to You by Us;
“Rates” means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Rates Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum meruit basis for any Work We have done;
“Rates Schedule” means the schedule of rates, charges and conditions from time to time in force for the provision of Services to You by Us;
“Reasonable Assistance Limits” has the meaning set out in clause 17.2;
“RPI” means the retail prices index published by the Office for National Statistics or any index relacing the retail prices index;
“Return/Cancellation Fee” means a fee charged by Us in accordance with clause 10.7;
“Service request” means a request for service including (without limitation) adds, moves, changes and technical assistance;
“Services” means the provision of any services by Us including Work, advice and recommendations;
“Software” includes software and any installation, update, associated software and any services provided in connection with any of these things;
” Us”, “Our” or “We” means Dynamics 365 Cloud company number 6619540 VAT Reg GB945052822 and its successors and assigns; and
“Work” means anything We may do, provide, customise, produce or acquire for You or for Your use or benefit, includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items.
“VAT” means Value Added Tax.
In these Conditions, the Rate Schedule and every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:
Words denoting the singular number only shall include the plural number and vice versa;
Reference to any gender shall include every other gender;
Reference to any Act of Parliament, Statute or Regulation shall include any amendment currently in force at the relevant time and any Act of Parliament, Statute or Regulation enacted or passed in substitution therefor;
Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;
All references to pounds (£) are to pounds sterling;
A reference to time is to London, UK Time;
A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions;
A recital, schedule, annexure or description of the parties forms part of these Conditions;
A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
A reference to “includes” means includes without limitation;
A reference to “will” imports a condition not a warranty; and
A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, being in administration, being the subject of a company voluntary arrangement or individual voluntary arrangement, having a receiver or manager appointed over any of Your assets or undertaking and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters;
If You comprise more than one person Your obligations shall be joint and several.
2.Application Of These Conditions
Conditions 10 and 11 apply also to the application of these Conditions. Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.
The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.
These Conditions apply to the Agreement to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any order you make or acceptance by you of any proposal made by constitutes an offer by You to purchase Goods or Services in accordance with these Conditions. You are responsible for ensuring that the terms of any order or the acceptance of any proposal made by Us and any applicable specification are complete and accurate.
An order or acceptance of any proposal shall only be deemed to be accepted:
(1) when We receive the price due in cleared funds and We issue an Order Confirmation Form; or
(2) (if applicable) when We commence the provision of any of the Services or the supply of any Goods to You
at which point a contract between Us and You shall come into existence subject to these Conditions.
You waive any right You might otherwise have to rely on any term endorsed upon, delivered with or contained in any of Your documents that is inconsistent with these Conditions.
Any samples, drawings, descriptive matter or advertising produced by Us and any descriptions or illustrations contained in Our catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the contract nor have any contractual force.
A Quote shall not constitute an offer. A Quote shall only be valid for a period of 7 days from its date of issue.
These Conditions shall apply to all contracts between Us and You whether or not specifically referred to.
3.1 The Commitment Term is described in Our Quote to You, and shall begin on the date described in an Order Confirmation Form.
3.2 After the expiry of the Commitment Term, the Commitment Term will be renewed automatically from year to year (beginning on the day following the expiry of the original Commitment Term) and will continue until terminated in accordance with Clause 4
4.1 Our agreement with You may be terminated by You upon ninety (90) days written notice if We:
4.1.1 Fail to fulfil in any material respect Our obligations under Our agreement with You and do not cure such failure within thirty (30) days of receipt of written notice of such failure received from You.
4.1.2 Breach any material term or condition of Our agreement with You and fail to remedy such breach within thirty (30) days of receipt of written notice of such breach received from You.
4.1.3 Terminate or suspend Our business operations, other than in circumstances where We have assigned or transferred our obligations under Our agreement with You to a third party.
4.2 You may terminate Our agreement with You:
4.2.1 by giving us not less than ninety (90) days written notice expiring on the last day of the Commitment Term; or
4.2.2 save as provided in clause 4.2.3, if within fourteen (14) days of the date of any written notice by Us of any variation of these Conditions (including any increase in any price or Rates in Our agreement with You) You give Us not less than ninety (90) days written notice that You are not willing to accept such variation.
4.2.3 Clause 4.2.2 shall not apply if any increase in price notified by Us to You:
(1) is in respect of our annual review of Our prices for Services as described in clause 12; or
(2) arises by reason of any increase in any price charged to Us by any third party in respect of Goods or Services supplied to You by Us.
4.3 Our agreement with You may be terminated by Us:
4.3.1 upon thirty (30) days written notice to You at any time during the first ninety (90) days following the beginning of the Commitment Term; or
4.3.2 immediately if You shall become insolvent; or
4.3.3 immediately if You suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of Your business; or
4.3.4 immediately if Your financial position deteriorates to such an extent that in Our opinion Your capability to adequately fulfil Your obligations under Our agreement with You has been placed in jeopardy; or
4.3.5 in accordance with clause 20.
4.4 Without limiting Our other rights or remedies, We may suspend provision of Goods or Services under this Agreement or any other contract between You and Us if You are in breach of Our agreement with You or if You become subject to any of the events listed in clause 4.3.2 to clause 4,3.4, or We reasonably believes that You are about to become subject to any of them, or if You fail to pay any amount due under this Agreement on the due date for payment.
4.5 Without limiting Our other rights or remedies, We may terminate Our agreement with You or any other contract between Us and You with immediate effect by giving written notice to You if You fail to pay any amount due under this Agreement on the due date for payment.
4.6 On termination of Our agreement with You for any reason You shall immediately pay to Us all of Our outstanding unpaid invoices and interest together with any monies payable by Us to any third party supplier for the supply by Us to You of any internet service or connection or any telecommunications service or connection.
4.7 Termination of this Agreement shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement that existed at or before the date of termination.
4.8 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
4.9 If either party terminates this Agreement, and all monies then due to us have been paid in full in cleared funds and subject to You paying to Us in cleared funds such additional monies as We agree with You, We will assist you in the orderly termination of Services, including the timely transfer of the Services to another designated provider. You agree to pay us for rendering such assistance at our normal rates as outlined in our then current Rate Schedule.
4.10 If in accordance with Our agreement with You any Goods are being paid for by instalments the remaining instalments shall become due and payable on the date of termination.
4.11 If You wish to terminate our agreement with You before the end of the Commitment Term You will pay to Us no later than 14 days after giving Us notice of such termination all monies which would have been payable to Us until the end of the Commitment Term.
You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in these Conditions.
6.1 Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of Your or Us.
6.2 Clause 6.1 shall not apply to the service of any legal proceedings.
These Conditions shall be governed by and construed in accordance with English law and the parties agree to submit to the non-exclusive jurisdiction of the Courts in England.
You may not assign Your rights and obligations under Our agreement with You without Our prior written consent.
9. Variation Of These Terms And Conditions
We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. You accept that by doing this and notifying You in writing of such changes, We will then have provided You with sufficient notice of the variation.
10.1 Once a Quote has been confirmed by Us in an Order Confirmation Form, then the prices in the Order Confirmation Form will be the final agreed price.
10.2 Until We issue an Order Confirmation Form We reserve the right to alter product specification or and prices in the Quote, before We send You an Order Confirmation Form.
10.3 When a special price or discount offer has been applied to a Quote, no other special promotion, discount or bonus offer will be applicable.
10.4 If any products in a Quote are made subject to any price or supply fluctuations that are outside Our control We reserve the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.
10.5 Prices on non-stocked products are subject to Price and stock fluctuations and can only be confirmed in an Order Confirmation Form. While We endeavour to honour every price quoted, if there is a price increase that is beyond our control, We reserve the right to increase the price to reflect such increase before We issue an Order Confirmation Form.
10.6 Freight charges will be added to an Order unless otherwise stated. Any included delivery charges are estimates only.
10.7 We do not keep inventory and only order items once We receive a completed Order from You or We send You an Order Confirmation Form. If You would like to cancel an Order for Goods not yet delivered to You or if You wish to return an item which has been supplied to You and is unused and remains in its original packaging We will need to cancel an order made by Us to our suppliers. If We are able to do this, a restocking fee may be charged. Not all products can be returned. Subject as provided also in clause 16.3 where We arrange a return or refund on behalf of You, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation fee to cover the administration costs to Us in processing the return or refund, or in processing the Order, the cancellation and any refund. We may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to You by Us.
10.8 Unless specified, all Goods are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.
10.9 Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion.
11.1 Order forms: You may place an Order for Goods and/or Services with Us. Normally, We will require that You provide either a completed Order form or You approve the quote electronically via either an email or a web based system with the date and Your details, including Your full legal name or description and any applicable VAT number (including the full name or description of any person on whose behalf the order is placed), Your address together with any relevant Quote number and date.
11.2 Approval of Orders: You will need to sign the Order or have it duly executed on Your behalf, unless the Order is sent by email or via Our web based ordering system, in which case the Order will be treated or deemed to be signed by You or on Your behalf by the person whose name appears as the sender of the email or submitter of the form.
11.3 Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order. If any Order is signed or sent by email or approved through Our web based ordering system by a named person, You warrant that the Order is signed by, and duly authorised by a person who is authorised to sign the Order and the person who sent the email.
11.4 Acceptance and Orders: An Order has no effect unless or until it is accepted by You in writing and, until We have received from You payment in cleared funds for the Order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.
11.5 No obligation to deliver: We are not obliged to deliver any Order until we have received payment in cleared funds from You for the Order and for any related freight, delivery and (where applicable) in-transit insurance costs or where We are unwilling or unable to complete the Order for any reason provided that We refund any payment made by You in respect of the Order.
11.6 Credit checks: For the purposes of ascertaining the credit standing or history of a prospective Client to whom We are considering extending credit or payment terms, You hereby consents to Us undertaking a credit reference check in respect to You.
11.7 Processes and Procedures: We have processes and procedures that We follow in the course of the provision of Our Services and the supply of Goods. You agree to co-operate with Us and to comply with such processes and procedures as advised to You from time to time.
12.1 Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of VAT and any other applicable taxes, levies, tariffs or government charges from time to time in force.
12.2 Rates Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule from time to time in force during this Agreement.
12.3 Vary Rates: We reserve the right vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), by notice to You. Without prejudice to the foregoing Our prices for the provision of Services shall be increased on each anniversary of the start of the Commitment Term by an amount equal to the increase in RPI in the previous 12 months.
12.4 Call-out fees: You acknowledge that call-out fees may be charged in addition to the Rates and that the amount of the call-out fee will depend upon where the Services are provided and if Services are provided which are not part of a Plan.
12.5 Expenses: You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses. Where appropriate, We will obtain prior written authorisation from You before such expenses are incurred.
12.6 Separate charges for Goods and Services: We may in Our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together and the terms of payment for such Goods or Services shall be set out in an Order Confirmation Form.
12.7 Calculation of increments: Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, We will charge the applicable rate for the whole increment of time even if work is done during part only that increment of time.
12.8 Change in underlying costs: Without prejudice to any other of Our rights under these Conditions, where there is any increase in the costs incurred by Us in connection with the supply of Goods or Services to You, We may vary any of Our Rates.
12.9 Pre-Paid Blocks of Service: Where You agree to buy Pre Paid Blocks of Service during a Period, payment must be made in advance for the Pre-Paid Blocks of Service at the rate applicable pursuant to the Rates Schedule for all Services. Services included in a Pre-Paid Block of Service rate during the Period:
12.9.1 are calculated in accordance with the applicable minimum time periods and increments set out in the Rates Schedule; and
12.9.2 are only provided by Us during the applicable Period.
12.11 Where Services are provided for a specified Period:
12.11.1 the Services remaining unused for that Period cannot be rolled over into any subsequent Period; and
12.11.2 We are not liable to refund, re-imburse, pay damages or otherwise compensate or indemnify You in respect of those unused Services.
13.1 Service and Plan Variations: We may by notice to you withdraw the provision of, or vary the scope or terms of, or add to or change, the Services.
13.2 Copies on Request: We will provide You with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.
We may subcontract any or all of the Services to be performed, but shall retain prime responsibility for the Services under Our agreement with You.
15.1 Delivery liability: Delivery date and time information is based on an estimate given by our suppliers and cannot be held as the actual promised date. Time shall not be of the essence for the supply of any Goods or Services.
15.2 Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address in the UK during Business Hours unless otherwise arranged.
15.3 Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Your nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You. Nothing in this clause 3 will affect title to the Goods.
15.4 Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery under clause 3.
15.5 Retention of Title: Until We receive full payment in cleared funds for all monies due to Us by You on any account or for any reason:
15.5.1 title to, and property in, Goods supplied to You remain vested in Us and does not pass to You;
15.5.2 You must hold those Goods as fiduciary bailee and agent for Us and must not sell them;
15.5.3 You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact and unobscured;
15.5.4 where You sell the goods in breach of these Conditions, You are required to hold the proceeds of any sale of those Goods on trust for Us in a separate account; any failure to do so will not affect Your obligation to deal with the proceeds as trustee and remit them to Us on receipt or on demand by Us;
15.5.5 We may, without prior notice, enter into any premises where We suspect those Goods may be, take possession of those Goods and sever and remove those Goods (notwithstanding that they may have been attached to other goods which are not Our property) and for this purpose You hereby irrevocably authorise and direct Us (and Our employees and agents) to enter into such premises as Your duly authorised agent. You will indemnify Us and hold Us harmless from and against any costs, claims, allegations, demands, damages or expenses or any other acts or omissions arising from or in connection with, such entry, repossession or removal.
15.5.6 You irrevocably appoint Us as Your attorney to do anything We consider necessary in order to enter such premises and repossess the Goods as contemplated by this clause 5.
16. Quality Returns and Claims for Goods and Services
16.1 Quality and General Returns Policy:
16.1 If We are able to do so, We shall assign to You any unexpired manufacturer’s warranty.
16.2 If clause 16.1 shall not apply We warrant that on delivery, and for 30 days after the date of delivery (or for such longer period as We shall agree with You in writing or for such shorter period (if any) as may be applicable to reconditioned parts) (warranty period), the Goods shall be free from material defects in design, material and workmanship and be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
16.3 Subject to clause 16.3, if:
16.3.1 You give notice in writing to Us during the warranty period within 7 days of delivery that some or all of the Goods do not comply with the warranty set out in clause 16.1; and
16.3.2 If We so request We are provided with a report from a qualified independent engineer or technician describing the defects in the quality of condition of the Goods or their failure to correspond with their specification;
16.3.3 We are given a reasonable opportunity of examining such Goods; and
16.3.4 You (if asked to do so by Us) return such Goods to Our place of business or to the manufacturer at Your cost,
We shall, at Our option, replace the defective Goods, or refund the price of the defective Goods in full.
16.4 We shall not be liable for the Goods’ failure to comply with the warranty set out in clause 16.1 in any of the following events:
16.4.1 You make any further use of such Goods after giving notice in accordance with clause 16.2;
16.4.2 the defect arises because You failed to follow Our oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
16.4.3 the defect arises as a result of the specification of the Goods requested by You not performing the function anticipated by You or not being appropriate for the use or application required by You;
16.4.4 You alter or repair such Goods without Our written consent;
16.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
16.4.6 the Goods differ from their description or any specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
16.4.7 You fail to comply with the manufacturer’s instruction relating to those Goods; or
16.4.8 any programming specified by You shall not be appropriate or shall prejudice or adversely affect the use or performance of that Good or any other goods not supplied by Us; or
16.4.9 the Goods being used with other goods which impair, prejudicially affect or prevent the performance of the Goods.
16.5 Except as provided in this clause 16, We shall have no liability to You in respect of the Goods’ failure to comply with the warranty set out in clause 16.1.
16.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from Our agreement with You.
16.7 These Conditions shall apply to any replacement Goods supplied by Us.
16.8 Customised Goods not returnable: Where Goods have some element of customisation for You, are supplied pursuant to an Order for Goods that is in Our opinion special or unusual or if the Goods are obtained from overseas, the Goods are obtained from a supplier who is no longer trading, or if the Goods are otherwise not readily returnable by Us to the manufacturer or supplier or if any related services may not be cancelled, You may not return the Goods to Us or cancel the related services.
16.9 Return Condition: Where You are entitled to return Goods under these Conditions and subject as provided in clause 10.7, You must return the Goods in their original condition and packaging provided always that where, upon opening the packaging it becomes apparent that the Goods are different from what is described on the packaging the Goods may be returned.
16.10 Consequences of use, installation, customisation or sale: You will indemnify and hold Us harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customised or re-sold by You (without prejudice to the recourse of a customer of Yours to the manufacturer of the Goods).
17. Computer Utility, Functionality And Fitness For Purpose
17.1 Service limitations: You acknowledge that a reasonable incident of the Services may involve trial and error and that the Services may be applied in novel or unknown circumstances and involving experiment. In particular, You acknowledge that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem You are having. We will make what We consider to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist You, You acknowledge that such Work may not cure a problem and that We shall incur no liability to You or to any third party as a result of the provision by Us of Services in such circumstances.
17.2 Reasonable Assistance Limits: We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in providing the Services (including with the installation and customisation of new software or hardware for You or any other Work) under any Plan and You will pay for additional work at the Rates unless otherwise agreed. Without limiting Our discretion to determine what is reasonable assistance, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that We have allowed or allows for the Work or has estimated or estimates the Work will take, whether or not notice of the time allowed or estimated is given by Us to You.
17.3 Recommendations, suitability, functionality and fitness for purpose: The parties acknowledge that:
17.3.1 We may recommend that You purchase Goods provided by third parties from time to time;
17.3.2 Recommendations may be made in situations where You have made known to Us the purpose for which the Goods will be used or some function sought to be fulfilled;
17.3.3 You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, e.g.
(1) the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment or Your existing computer system; or
(2) the behaviour of third party supplier, e.g. in relation to support;
17.3.4 You acknowledge that the Services provided by Us may involve the task of seeking to customise Goods so they may be fit for a particular purpose and that customisation may be a very substantial project in itself. Accordingly You will accept the sole responsibility for, and indemnify and hold Us harmless in respect of:
(1) decisions as to whether or not to follow recommendations by Us;
(2) decisions as to whether or not to purchase or customise Goods or obtain Services for that or any other purpose; and
(3) any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services, including a responsibility to obtain Your own independent advice or second opinion from a suitably qualified person;
17.3.5 Where We provide Services with a view to achieving Your purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), You must pay for those Services on time without any set-off or counter-claim, whether or not We are able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that We have acted in good faith and have made what We consider, in Our absolute discretion, to have made all reasonable endeavours to achieve those outcomes.
17.5 Testing Procedures: You will follow Our instructions with regard to testing or troubleshooting any problems and that if those do not resolve the outstanding problems, We will, subject to these Conditions, allocate such resources as We consider reasonable in the circumstances towards their resolution.
18.1 Force Majeure: For the purposes if this clause a “Force Majeure Event” shall mean any matter or thing beyond Our control, including any failure of Infrastructure, failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.
18.2 If We are unable to supply any Goods or Services due to a Force Majeure Event We may suspend, cancel or delay the performance of any Order (even if the Order has already been accepted) or cease to provide or suspend the provision of the Services by written notice to You, in which case You will hold Us harmless.
18.3 We will not be liable for any breach of contract due to a Force Majeure Event.
19.1 Alterations to Specifications: We make every effort to supply the Goods in accordance with the Order however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Order date and before delivery.
19.2 Substitute Goods: If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality provided however that You will not pay a higher price than the price Quoted or otherwise agreed for the Goods ordered.
20. Your Obligations and Acknowledgements
20.1 You will provide such access to your premises at such times as We reasonably require.
20.2 You acknowledge that by reason of Your existing equipment or by reason of changes in technology the Services may not be capable of delivery or the provision of the Services may be impaired in which event We may cancel the provision of the Services unless you agree at your expense to update or replace your existing equipment (with our consent as to the nature and manner of installation of such new equipment) so that your equipment is compatible with the provision of the Services.
20.3 You acknowledge that the provision of the Services cannot be guaranteed to be fault free if there is some failure of Infrastructure or otherwise and that if it is necessary to make good any such failure you shall be responsible for the cost of doing so.
20.4 If at any time a survey of your premises by Us or by any other supplier of Infrastructure reveals the need to carry out work (and that work is not specified in an Order Confirmation Form) then the cost of that work shall be payable by You in addition to the amount payable in accordance with the Rate Schedule.
20.5 We may adjust the Rate Schedule if Your computer system is altered, upgraded or added to and those charges shall be included in the amounts payable in the months after the date of such alteration, upgrade or addition.
20.6 You agree to enable the supply of the Services by remote access to your computer equipment and acknowledge that if such remote access cannot be obtained by Us (whether by reason of a failure of Infrastructure or otherwise) we may not be able to provide the Services in a timely manner or at all.
21.1 Exclusions and Limitations on Liability. We will not be liable:
21.1.1 for any harm to Your business, loss of revenues, loss of anticipated savings, loss or corruption of data or information, lost profits or other indirect consequential or special losses;
21.1.2 to You or to any third party for any losses suffered by You or by that third party;
21.1.3 for any failure, defect or other consequence of any equipment forming part of Your computer system not being secure by reason of being hacked or the subject of any virus, malware or other third party interference given that (unless agreed by Us in writing) the security of Your computer system is not part of the Services;
21.1.4 to You for any failure on your part to comply with your obligations in this Agreement;
21.1.5 for any failure on your part to use any Goods or software or Your computer system in accordance with the relevant manufacturer’s instructions or in accordance with any guidance issued by Us;
21.1.6 if you do not permit Us to install any patch or software upgrade in the provision of the Services by Us
21.1.7 Your use of Our website (including the use of a credit card or other debit device) or any linked website;
21.1.8 the provision of inaccurate, incomplete or incorrect information by You.
21.2 Without prejudice to clause 21.1:
21.2.1 our liability in contract or tort, misrepresentation, restitution or otherwise arising from any default by us under or in connection with this Agreement (other than for the supply of Goods) shall be limited in the case of the provision of Services to a refund of [the amount paid by You to Us in the six months preceding the date of any claim made by You.
21.2.2 if any Goods found to be defective during the manufacturer’s warranty period or during the warranty period for those Goods (which may be less than 12 months for certain types of Goods or for Goods which are refurbished) our total liability to the You in respect of any Goods supplied in accordance with these Conditions shall not exceed the price of those Goods.
21.3 We do not seek to limit Our liability for death or personal injury resulting from Our negligence, whether of Our employees or others for whom We are responsible.
21.4 We shall not be liable for the consequences of any failure of any of the Infrastructure or for any damage caused by electrical surges through the power supply or power surges caused by external influence such as that caused by lightning strike or similar.
21.5 You acknowledges that Our prices reflect the limitations contained in this clause 21. You shall effect insurance cover if available in respect of the Goods and in respect of all risks relating to the Services which are not covered by this Agreement or for the liabilities excluded under this clause 21.
21.6 To be valid any claim against Us must be notified to us no later than one year after the date of supply of any Goods or of any Services.
21.7 Limit on damage from a failure in supply: We shall not be liable for any claim for loss or damage by You or a third party where We have failed to meet any delivery date or if We cancel or suspend the supply of Goods or Services due to the fault of a delivery service or other supplier to Us of Goods or Services.
21.8 Laws still apply: Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.
21.9 Severance If any of the provisions of clause 21 are not valid or enforceable those provisions shall be deemed to be excluded to the intent that the remaining provisions shall be valid and enforceable.
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We make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, We may rescind the affected contract by written notice to You, notwithstanding that We have already accepted Your Order and/or received payment from You. Our liability in that event will be limited to the return of any money You have paid in respect of the Order.
23. Privacy Statement And Your Rights
23.1 We may collect personal data from You for the for the supply of Goods or Services to You (“Authorised Purposes”).
23.2 You will provide such personal data to Us for Authorised Purposes.
23.3 We shall deal with such personal data in accordance with our privacy policy https://www.dynamics365cloud.co.uk/privacy-policy/ from time to time in force.
24.1 We make no representations or warranties in relation to information available on Our website, including without limitation:
24.1.1 that the information on Our website is complete or correct;
24.1.2 that Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software; and that We endorse any internet site linked to Our website or any third party products or services referred to on Our website.
24.2 We will not be responsible for the use by You of any links on Our website to any third party or otherwise arising from the use of Our website.
We will maintain at Our own expense, commercial general liability insurance for personal injury and property damage for a general aggregate of £500,000. At Your request We will provide You with certificates, including renewal certificates evidencing such coverage within thirty (30) days of commencing Our agreement with You, at every renewal and at other times as may be reasonably requested by You.
26. Lodging Of Service Requests
In order for Us to provide You with the agreed Service, You agree to follow Our process for lodging Service Requests as outlined in Appendix A.
27. Access to Systems, Premises and People
27.1 In order to provide You with the agreed Service, You agree to give Us access to various items of Yours including but not limited to, equipment, people and premises as and when required.
27.2 You agree to allow Us to install software on Your Equipment that allows Our technicians to access Your systems at any time. This software allows Us to view system statuses, send monitoring information, see users’ desktops and control Your PC’s. This may require that devices are left on overnight or weekends.
27.3 You acknowledge that it is Your responsibility to train Your staff and other users of Your computer system in the proper use of such system and the security of Your computer system and of any data (whether Your data of the data of any third party) stored on Your computer system.
27.4 You acknowledge that it is for You to install and keep up to date anti-virus and other security software to protect your computer system and that the You are licensed to use such software.
27.5 It shall be a condition of Us providing any Services or supplying any Goods that you have complied with Your obligations in these Conditions.
27.6 If in the provision of the Services We identify the need to install new or updated anti-virus or other security software such software must be installed by Us before we can provide any other Services or supply any Goods. In such circumstances it shall be Your responsibility to ensure that We have access to all devices and equipment which is or may be connected to Your computer system and which is used at your premises or by remote access by You or by any of your employees or others having access to Your computer system.
27.7 Unless included in an Order Confirmation Form, the cost of the installation of such anti-virus or other security software shall be payable to Us in addition to any other cost specified in an Order Confirmation Form.
27.8 It shall be Your responsibility to ensure that Your computer system is not capable of being adversely affected by any remote access we gain to the that system.
27.9 If You fail to allow Us to install any patch or software upgrades within one month of Us notifying You that any patch or upgrade is available for installation, We may terminate this agreement by giving one month’s written notice to You.
28. Third Party Authorisations
At times We may need to contact Your third party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorisation for Us to deal on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers.
29. Payment, Late Payment And Default
29.1 Payment due date: All invoices issued to You are due and payable to Us within the terms stated on the invoice (unless otherwise agreed in writing) by cash, cheque, credit card or direct deposit in accordance with these Terms and Conditions and in the way set out in the Invoice. All monies payable to Us shall be paid without any deduction and without exercising any right of set-off.
29.2 7 days late: Where You fail to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You.
29.3 Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You to Us and will be recoverable from You, in addition to the original invoice cost. If You default in payment of any invoice on time, moneys which would have become due by You at a later date shall be immediately due and payable without any further notice to You. Collectively, all of these moneys are referred to in these Conditions as a “Sum Due”.
29.4 Interest: If payment of any Sum Due is not made on time, We will charge interest daily on the Sum Due at the rate of 4% over the base lending rate from time to time of HSBC Bank plc, calculated and charged daily on and from the due date until the Sum Due is paid in full.
29.5 Application of funds: All payments of the Sum Due made by You to Us will be applied as follows:
29.5.1 first in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by Us in relation to any dishonoured cheque fees, collection costs or any other action taken by Us for the recovery of any amounts owing by You to Us;
29.5.2 secondly, in or towards payment of any interest due or payable hereunder, and
29.5.3 thirdly, in or towards payment of Your debts to Us in order from the longest standing due to the most recently incurred.
29.6 Security: We may require You to provide security over Your property (including the Goods or any other property of Yours) as collateral to be held as security for any Sum Due or as a condition precedent to the continuation of supply of Goods or Services by Us to You.
29.7 Payment arrangements: In the event that a repayment arrangement is made in relation to any Sum Due and the supply of Goods or Services is resumed, but then a repayment due under that arrangement is not made on time, We may, in Our absolute discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to You.
29.8 Power of Attorney: You hereby irrevocably appoint Us as Your attorney to do anything We consider fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held or to be held as security for any Sum Due.
29.9 Other remedies: We may exercise any of Our rights and remedies including taking legal action against You for the recovery of any moneys due to Us, notwithstanding it may have exercised other rights under these Conditions.
30. Non Solicitation Of Clients And Employees
30.1 You agree that You will not employ or offer employment to any of our Employees or sub-contractors during the course of Our agreement with You and for a period of one year after the termination of Our agreement with You .
30.2 You agree that if You are in breach of clause 28.1 You will immediately pay Us 100% of the employee’s total annual salary as liquidated damages and as a genuine pre-estimate of the loss suffered by Us.
30.3 If You are in breach of clause 28.1 We shall may give You 30 days’ notice to terminate Our agreement with You without liability to You. The amount of such liquidated damages is not intended as a penalty and is reasonably calculated based upon the projected costs We would incur to identify, recruit, hire and train suitable replacements for such personnel.
31.1 All Software licences are the responsibility of You and not that of Us. It is Your duty to store all licences for all Software used, so that that they can be reproduced if and when required. This includes all Software installed by Us.
31.2 You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:
31.2.1 any unauthorised Software use by You;
31.2.2 any breach of any Software licence in respect of Software provided to Us by You to be installed on Your computer or computer system;
31.2.3 otherwise as a result of Us installing Software at Yours where You are not authorised to use the Software; and
31.2.4 any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.
31.3 All copyright in custom software remains Our sole property unless alternate arrangements are made as part of a separate software agreement.
32. Copyright And Confidentiality
32.1 Warranty and breach: You warrant that any confidential or copyright information or intellectual property (of any kind and in any form held) or provided by You to Us belongs to You. In the event of any breach of this warranty, You will pay all sums due to Us as If such warranty had not been breached (and regardless of any non-performance of any obligation by Us on account of or in connection with the breach of such warranty). You indemnify and hold Us harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by You.
32.2 Title in Copyright: All copyright and other intellectual property rights in any Work created, commissioned or acquired by Us in the course of the supply of Services by Us to You will be Our exclusive property unless otherwise agreed in writing by Us and You.
33.3 Confidential Information: We acknowledge that in the course of providing Services to You, We may learn from You certain non-public personal and otherwise confidential information relating to You, including Your customers, consumers or employees. We shall regard any and all information We receive which in any way relates or pertains to You, including Your customers, consumers or employees as confidential.
33.4 You also acknowledge that all information and services, consulting techniques, proposals, and documents disclosed by Us or which comes to Our attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary information to Us.
As such, both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose except unless such information was in the public domain (other than by reason of a breach of this clause) or such disclosure is permitted in writing by the disclosing party or is required by law to be disclosed.
Service Request Lodgement Process
When you contact us to lodge a service request only the methods below must be used:
Phone: 0113 4267560
Email: [email protected]
Web Portal: https://my.everoncloud.co.uk
Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue.
If the issue is being lodged by either phone or external email you must include your name, company and return contact details.
Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.
Service Requests Outside Of Our Business Hours
Service Requests that must be addressed outside of business hours must be lodged by phone (charges apply for after-hours work). If not, the Service Request will be viewed on Our next Business Day.