AD Network Solutions Limited
TERMS AND CONDITIONS
1. Definitions and Interpretation
1.1 The following are the standard terms and conditions under which AD NETWORK SOLUTIONS LIMITED, AD NETWORK SOLUTIONS (UK) LIMITED OR BE-IP CONNECTED (“ADNS”) supplies computer hardware, licences computer software and provides related information technology services and projects. These Terms and Conditions, in-line with the SLA, shall apply unless otherwise expressly stated in writing to any agreement entered into between ADNS and a Customer.
1.2 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Approval” means a document or electronic communication to be used in conjunction with the supply of Products and Services to be approved by the Customer before orders are accepted;
“Agreement” means any agreement entered into between ADNS and a Customer to which these standard Terms and Conditions apply including the proposal;
“Customer” means the individual, business, or other organisation with whom ADNS contracts;
“Supplier” means any supplier of Products to ADNS;
“Products” means computer hardware, software and associated equipment which may be supplied by ADNS as specified in the proposal; and
“Services” means any services provided by ADNS as set out in the proposal or quote.
1.3 Any reference to a day or days refers to business days being any day which is not a weekend or public or bank holiday in the United Kingdom.
1.4 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
An Order placed by the Customer, if accepted by ADNS, shall be subject to these Terms and Conditions and to the availability of all relevant Products and Services. These Terms and Conditions shall apply to the exclusion of any terms and conditions which the Customer may supply.
3.1 All proposals are deemed to be subject to these Terms and Conditions and shall be valid for 14 days unless otherwise stated in the proposal.
3.2 ADNS reserves the right to withdraw or amend any proposal prior to the Agreement.
3.3 ADNS reserves the right to withdraw or amend any proposal following the Agreement where:
3.3.1 Products are withdrawn by the Supplier;
3.3.2 the Supplier increases the charges for Products to ADNS; or
3.3.3 specifications of Products are varied by the Supplier.
4. Site Survey
4.1 ADNS shall arrange with the Internet Service Provider (ISP), a site survey upon the premises that the Services will be carried out.
4.2 Free installation of the Services is of the condition of the outcome of the site survey by the ISP.
4.3 If the ISP states that an additional cost will be incurred, the Customer is at this point, able to cancel the agreed Services. If the Customer goes ahead and decides against the charge at a later date, this must be done as set out in clause 19.
5. Product Specifications
5.1 ADNS shall use reasonable endeavours to advise the Customer of any variations to Product specifications following formal notification to ADNS of such variations by the Supplier.
5.2 Where changes to Product specifications significantly alter the price or fitness for purpose of the Products ADNS and the Customer shall agree upon such changes in writing or arrange for the supply of alternative Products.
5.3 Changes to Product specifications shall not provide grounds for cancellation of Customer orders.
6. Hardware and Software Products
6.1 Products shall be supplied by ADNS on the terms and conditions of use for such Products as defined by the Supplier at the time of delivery.
6.2 ADNS gives no warranty to the Customer in respect of Product that is purchased by ADNS from a Supplier for resale to the Customer but shall take reasonable steps to assist Customer in pursuing warranty claims against the relevant Supplier.
6.3 The undertaking given in clause 5.2 shall not apply if the Product has been altered by any party other than ADNS or has been operated or run on any platform or in any environment inappropriate for the Product.
6.4 Unless otherwise specified, ADNS shall only deliver non-modifiable and executable run-time versions of Software.
6.5 The Customer must comply with the terms of the Supplier’s software licences.
7. Delivery and Acceptance
7.1 Unless it is agreed otherwise delivery will be made to the address as specified in the proposal or as agreed with Customer.
7.2 ADNS shall not be liable for any variation from Product specification on delivery unless a claim in writing is made by the Customer within 7 days of the date of delivery.
7.3 In circumstances where ADNS has attempted to physically deliver Products to the Customer and the Customer is unable or unwilling to accept such delivery, the Customer will be charged for the cost of the failed delivery in addition to any and all subsequent attempts. If the Customer is unable to accept delivery, a new date shall be set by mutual agreement of the parties. If the Customer is unwilling to accept delivery, the parties shall seek to vary the Agreement as appropriate by mutual agreement or the Customer shall seek to terminate the Agreement in accordance with Clause 18 of these Terms and Conditions.
7.4 If, upon delivery, the Customer notifies ADNS of defects or exclusions in Products or in the supply of Services, further work may be agreed by the parties to remedy such defects. ADNS shall use all reasonable endeavours to undertake such work without delay.
7.5 If, notwithstanding defects or exclusions in a delivery of Products or the supply of Services, the Customer subsequently uses the Hardware or Software provided without prior agreement having been made as to any remedial work to be carried out on the part of ADNS then the Customer is deemed to have accepted the same.
8. Performance of Services
8.1 In respect of Services supplied by ADNS, the only warranty given to the Customer is that ADNS shall in accordance with normally accepted professional standards make good as quickly as is reasonably possible and at its own expense any defect which develops during a period of 30 days after performance of Services.
9. Return of Products
9.1 The return of Products shall be at the sole discretion of ADNS but in any circumstance where ADNS agrees to accept return of Products for any reason then the Customer shall:
9.1.1 advise ADNS within 7 days from the date of delivery of Products by ADNS of the reason(s) for the return of Products;
9.1.2 properly pack the Products in the original packing where possible and include a detailed packing list;
9.1.3 return the Products in the condition in which they were received to arrive at ADNS within 14 days from the date of delivery of Products by ADNS; and
9.1.4 take no action to effect any warranties that may cover the Products.
9.2 ADNS shall be entitled to levy to the Customer a reasonable administration charge amounting to no more than the cost of return delivery and the staff time spent on handling the return in respect of return of Products and the Customer shall pay the same to ADNS within 14 days of receipt of an invoice.
10. Title and Risk
10.1 Risk of loss or damage in respect of any tangible item shall pass to the Customer on delivery of the item by the Customer.
10.2 The legal and beneficial ownership of Products and/or associated material supplied as part of Products and/or Services shall remain with ADNS until payment in full in respect of all such Products and associated material supplied as part of Products and/or Services has been received by ADNS in accordance with the terms of the Agreement.
10.3 Until such payment is received in full ADNS may without prejudice to any of its rights recover or resell any of the Products and/or associated material and may enter upon the Customer’s premises by its servants or agents for that purpose.
10.4 Where a licence shall be granted by a Supplier and/or ADNS to the Customer then the Customer shall not have the benefit of the licence until payment in full has been received by ADNS.
11.1 ADNS shall issue to the Customer an invoice or series of invoices in Pounds Sterling in respect of the supply of Products and Services.
11.2 Charges specified in the Agreement do not include Value Added Tax which, if applicable, shall be added at the rate in force at the time of supply.
11.3 Unless otherwise agreed by the parties in writing payment shall be made as follows:
11.3.1 fifty per cent [50%] of the total value of Products and Services (aggregated) shall be invoiced by ADNS upon acceptance of the Customer’s order pursuant to clause 2 above and shall be paid by the Customer by the date specified in ADNS’s invoice and, in any event, in advance of ADNS placing an order for any product required to fulfil the order; and
11.3.2 the remaining fifty per cent [50%] of the total value of Products and Services (aggregated) shall be invoiced by ADNS following delivery and shall be paid in accordance with clause 11.2
11.4 ADNS may review and increase the recurring charges capped at 15% in line with economic changes that affect business running cost. ADNS shall give the Customer written notice of any such increase three months in advance
11.5 Without prejudice to any other rights ADNS may have in respect of any failure by the Customer to pay the charges or other monies payable pursuant to the Agreement, ADNS may charge interest at the rate 8.75% above the base rate of the Bank of England from time to time in force, after as well as before judgement on any amount due from the Customer to ADNS from the date due for payment until payment is received.
11.6 ADNS may suspend all Services until payment for the undisputed amount has been made in full.
12.1 Time for payment shall be of the essence of the Agreement and failure to pay within the period specified shall render the Customer in material breach of the Agreement.
12.2 Unless otherwise agreed by the parties in writing, invoices shall be payable by no later than 30 days from the invoice date and shall be payable in Pounds Sterling.
12.3 If payment of any invoice is otherwise due it shall become automatically due immediately on the commencement of any act or proceeding in which the Customer’s solvency is involved.
13. Customer’s Obligations
13.1 During the continuance of the Agreement the Customer shall:
13.1.1 provide, free of charge, reasonable usage of machine time, communications, stationery, media, suitable working accommodation and access deemed necessary by ADNS to fulfil the Agreement and shall provide an appropriate environment or platform to enable ADNS to provide the Services or test run any Product and, in particular, the Customer warrants to ADNS that the Customer shall provide and environment capable of receiving the Services or Products;
13.1.2 furnish ADNS promptly upon receipt of a request such information as ADNS may reasonably require for the provision of the Services;
13.1.3 nominate prior to the provision of any of the Services under the Agreement an authorised representative to be its prime point of contact with ADNS during the continuance of the Agreement;
13.1.4 ensure the accuracy and validity of all data and technical information provided to ADNS;
13.1.5 allow ADNS reasonable access to its employees for the purpose of investigation and discussion in connection with the Agreement and ensure that its employees cooperate fully with ADNS in relation to the provision of the Services;
13.1.6 provide free and safe access to such premises as is necessary by ADNS to comply with its obligations under the Agreement; ensure that equipment provided by ADNS for the purpose and provision of the Agreement shall not be modified, changed or removed without prior written permission of ADNS. Where such equipment is modified, changed or removed then the cost of restoring or replacing the equipment shall be recovered from the Customer; and
13.1.7 ensure that third party suppliers of services to the Customer co-operate at all times with ADNS in relation to the provision of the Services
13.2 ADNS and the Customer shall indemnify each other and keep each other fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by negligent act or omission, wilful misconduct or breach of contract by the other, its employees or agents.
14.1 ADNS shall use its reasonable endeavours to comply with any day or dates for delivery of Products and for the supply of Services as stated in the Agreement. Unless the Agreement contains express provisions to the contrary, such dates shall constitute only statements of expectation and shall not be binding. If ADNS, having used its reasonable endeavours fails to deliver the Products, or to supply or complete the Services by such date or dates whether or not binding, such failure shall not constitute a breach of the Agreement. The Customer shall not be entitled to treat the Agreement as thereby repudiated or to rescind it in whole or in part or claim compensation for such failure or for any consequential loss or damage resulting therefrom.
14.2 When expedited delivery is agreed to by ADNS and the Customer and necessitates overtime or other additional costs, the Customer shall reimburse ADNS for the amount of such overtime payment or other costs and shall pay the same within 30 days of the date of the invoice.
14.3 If performance of the Agreement is suspended at the request of or delayed through default of the Customer for a period of more than 30 days, ADNS shall be entitled to payment at the then prevailing rates for the Services already performed, Products supplied or ordered and any other additional costs thereby incurred and the Customer shall pay such sums within 30 days of the date of the invoice.
15. Business Associates and Delegation
15.1 ADNS may delegate any of its obligations or responsibilities arising out of the Agreement.
15.2 The Customer may not assign the benefit or burden of the Agreement in any way.
15.3 At the written request of the Customer ADNS may, at its sole discretion, agree to novation of the Agreement. Such agreement must be evidenced in writing.
16. Proprietary Rights
16.1 Unless otherwise specified in the Agreement, copyright and all other proprietary rights in the Products and associated documentation and any documentation supplied in respect of the Services and all parts and copies thereof shall remain vested in ADNS or, for third party Products, in the Supplier.
16.2 In respect of software where the proprietary rights are vested in ADNS only a non-exclusive, non-transferable licence for the purpose for which the software has been made available to the Customer is deemed to be granted by ADNS and only then on condition that the Customer fulfils all of their relevant obligations arising out of the Agreement.
17.1 The following provisions set out ADNS’s entire liability (including any liability for the acts and omissions of its employees) to the Customer in respect of:
17.1.1 any breach of its contractual obligations arising out of the Agreement; and
17.1.2 any representation, statement or tortious act or omission, including negligence arising out of or in connection with the Agreement.
17.2 The Customer’s attention is drawn to the following provisions:
17.2.1 ADNS’s liability to the Customer for death or injury resulting from its own or that of its employee’s negligence shall not be limited;
17.2.2 any act or omission on the part of ADNS falling within this clause shall be known as an “Event of Default”; and
17.2.3 subject to the limit set out below ADNS shall accept liability to the Customer in respect of damage to the tangible property of the Customer resulting from the negligence of ADNS or its employees or the breach of contract by ADNS.
17.3 Subject to the provisions of clause 17.2.1:
17.3.1 ADNS’s entire liability in respect of any Event of Default shall be limited to fifty per cent [50%] of the price paid by the Customer under the Agreement;
17.3.2 ADNS shall not be liable to the Customer in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or ADNS had been advised of the possibility of the Customer incurring the same. If a number of Events of Default give rise substantially to the same loss, then they shall be regarded as giving rise to only one claim under this Agreement; and
17.3.3 ADNS shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of the same upon ADNS within one year of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
17.4 The Customer hereby agrees to afford ADNS not less than 30 days in which to remedy any Event of Default.
17.5 Nothing in this clause shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.
18.1 This agreement shall commence on the Commencement Date and shall continue for thirty-six months (Initial Term) or unless documented otherwise. The term of the agreement shall automatically extend for twelve months (Extended Term) at the end of the Initial Term and at the end of each Extended Term.
19. Cancellation of Order
19.1 The Customer acknowledges that, upon approval of its order, ADNS will itself place orders with Suppliers and incur liabilities. The Customer shall not be entitled to cancel any order for Product(s) and/or Service(s) or any part thereof except upon payment to ADNS of a cancellation fee to reimburse ADNS for loss of profit and all costs, charges and expenses incurred by ADNS in respect of the Product(s) and/or Service(s) or any part thereof up to the date of receipt by ADNS of written notification of cancellation from the Customer. The cancellation fee shall be the amount of the charges invoiced by ADNS upon approval of the Customer’s order unless otherwise agreed in writing
20.1 Without prejudice to any other provision contained within these Terms and Conditions ADNS may terminate the Agreement by notice in writing in any of the following events:
20.1.1 the Customer commits a material breach of the Agreement which is incapable of remedy; or
20.1.2 the Customer commits a material breach which is capable of remedy but which the Customer fails to remedy within 14 days of written notice by ADNS specifying the event of default and requiring its remedy.
20.2 ADNS and the Customer may by notice in writing to the other terminate the Agreement if the other shall have a receiver or liquidator appointed, shall pass a resolution for winding up (otherwise than for the purpose of amalgamation or reconstruction), if a Court shall make an order to that effect, if the other party shall enter into composition or arrangement with its creditor(s) or shall become insolvent. Such an event shall be deemed to be a material breach incapable of remedy.
20.3 During any Term (Initial or Extended) both parties can give written notice to the other party to terminate this agreement not less than six months before the end of that term. Notice less than 6 months will apply to a further extended term.
21. Consequences of Termination
21.1 Any termination of the Agreement howsoever caused shall not affect any accrued rights or liabilities of either ADNS or the Customer arising out of the Agreement;
21.2 On termination of the Agreement for any reason, the Customer shall return forthwith to ADNS the Products and all copies thereof, the documentation and the media supplied therewith and other items in the possession of the Customer which are the property of ADNS.
22. Intellectual Property Indemnity
22.1 ADNS shall indemnify and hold the Customer and its employees from and against all loss and damage and cost and expense resulting from or arising out of any threatened or actual infringement of patents, copyright, registered designs or other intellectual property rights belonging to any party.
23.1 ADNS and the Customer shall keep confidential the following:
23.1.1 all information of the other party obtained under, or in connection with, the Agreement; and
23.1.2 all oral communications, representations and information of any kind made by either party or their representatives or advisors pursuant to the Agreement.
23.2 The provisions of this Clause 23 shall not apply to:
23.2.1 any disclosure of the information contained in Clauses 23.1.1 and 23.1.2 for which the written agreement of both parties has been obtained;
23.2.2 any information in the public domain otherwise than as a result of a breach of the Agreement;
23.2.3 information that was already in the possession of the receiving party prior to disclosure by the other party; and
23.2.4 information obtained from a third party who is free to divulge the same.
23.3 The obligations of the parties as to disclosure and confidentiality shall come into effect on the signing of the Agreement and shall continue in force notwithstanding the termination of the Agreement.
24. Health and Safety
24.1 The Customer shall take all reasonable precautions to ensure the health and safety of ADNS’s employees while on the Customer’s premises.
24.2 ADNS shall not be liable to the Customer in any proceedings brought by the Customer against ADNS under any Health and Safety Regulations, except where such exclusion of liability is prohibited by law.
24.3 The Customer shall indemnify and keep indemnified ADNS in respect of any liability, penalty or fine in respect of or in connection with the provision of the Product(s) and Service(s) incurred directly or indirectly by ADNS under any Regulations, orders or directions made thereunder arising or resulting from the Customer’s default.
25.1 Any notice pursuant to the Agreement shall be in writing signed by a Director of ADNS or by some person duly authorised by a Director of ADNS and shall be delivered personally, sent by prepaid recorded delivery (airmail if overseas) or by facsimile transmission to the party due to receive such notice at the address of the party as shown in the Agreement or to such other address as shall be notified in writing to the other party to the Agreement from time to time.
25.2 Any notice delivered personally shall be deemed to be received when delivered. Any notice sent by prepaid recorded delivery shall be deemed (in the absence of evidence of earlier receipt) to be received 48 hours after posting (6 days if sent by airmail). In proving the time of despatch it shall be sufficient to show that the envelope containing such notice was properly posted.
25.3 Any notice sent by facsimile transmission shall be deemed to have been received upon receipt by the sender of the correct transmission report.
25.4 The rights and remedies of either party under the Agreement shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the other party nor any failure or delay by the other party in asserting or exercising any such rights or remedies.
25.5 If at any time any one or more clause, sub-clause, paragraph, subparagraph or any other part of the Agreement or these Terms and Conditions is held to be, or becomes, void or otherwise unenforceable for any reason under any applicable law the same shall be deemed omitted and the validity and/or enforceability of the remaining provisions of the Agreement or these Terms and Conditions shall not any way be affected or impaired thereby.
25.6 No variation in the provisions of the Agreement shall be of any effect unless made in writing and signed on behalf of the Customer and ADNS.
25.7 In the event that either party is prevented from fulfilling its obligations under the Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout the party shall not be deemed to be in breach of its obligations under the Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations. If and when the period of such incapacity exceeds 8 weeks, then this Agreement shall automatically terminate unless the parties first agree otherwise in writing.
25.8 Neither the Customer nor ADNS shall during the term of the Agreement and for a period of 6 months thereafter solicit or entice away or endeavour to solicit or entice away from the other any employee who has worked under the Agreement without written consent of the other.
25.9 The Agreement shall be governed by and construed in accordance with the laws of England and Wales. Any dispute concerning it or its interpretation shall be adjudicated in that Jurisdiction.