Cloudpushuk Ltd, Terms & Conditions
Table of Contents
2. PROPOSALS TO CLIENTS
3. HOW WE FORM A ‘CONTRACT’
4. IF WE GET SOMETHING WRONG
5. SUPPLY AND START DATES
6. INTERNET AND VOIP
7. MANAGED SERVICES
8. PRICE AND CHARGES
9. INVOICING AND PAYMENT
10 SITE ACCESS
11. LIMITATION OF LIABILITY
12. MUTUAL INDEMNITY
13. SUSPENSION, TERMINATION AND CONSEQUENCES
15. FRAUD AND SECURITY
17. DATA PROTECTION
18. INTELLECTUAL PROPERTY RIGHTS (IPR).
20. APPENDIX – DEFINITIONS
Every provider of services and/or products has a set of Standard Terms somewhere and their purpose is to provide clarity about what should happen in any given situation. They set out the key commercial terms you offer to your clients and helps everyone to understand their duties, rights, roles and responsibilities.
Unfortunately, the reality us that they are created by Lawyers. That means they are incredibly lengthy, and written in an entirely incomprehensible legalise, rarely read, and can hide some pretty odious terms!
We like to think we’re a bit different and hence our terms cover all the key areas in plain English and reflect a ‘Partnership’ and not ‘Provider’ relationship. No nasty terms and lots of ‘We’, ‘Us’ and ‘Mutual’.
2 Proposals to Clients
We have a number of ways that we can propose something to you, it may be verbal, via a sketch on a napkin or something a bit more formal such as a Proposal, Estimate or Quote. If you like it without change you can accept it on-line. Until you sign something neither of us is committed to do anything. If you did sign and then regret it just have a chat and we will work out something.
3 How we form a ‘Contract’
There are broadly three types of contract that we may work together on:
- Product – a ‘thing’ that we sell to you
- Project – a set of requirements, scope, deliverables, schedule and a cost
- Service – something we manage for you for a cost, and it can renew each year if you so wish.Following on from a Proposal, Estimate or Quote you may be sent a Sales Order and a Statement of Work, and in the case of a service it may be a Managed Service Agreement (MSA). In all cases you can either accept on-line by clicking accept, or by returning a signed copy. We may need to confirm who signed and do a credit checks etc before we confirm back, and then we have a Contract and the start of a great experience!
4 If we get something wrong…
No-one is perfect and sometimes either of us may get things wrong. If we need to change something we will work with you to see what needs to be done to correct or change and agree how we handle any impacts (e.g., cost).
5 Supply and start dates
We will make all reasonable attempts to start and complete work when we state. In rare cases this may not be achievable due to events beyond our control. In these cases, we will explain the problem and work with you to try to find a solution or alternative. If we cannot find a solution, we may need to cancel the contract without liability.
As soon as a delivery of equipment has been made to you and confirmed it is your responsibility to look after it. It is our responsibility before it has been shipped to site.
6 Internet and VOIP
Internet and VOIP services are provided by our partners and they will issue a set of terms and conditions directly to you.
7 Managed Services
You pay an annual service charge either in advance or monthly instalments and we provide all services in accordance with the MSA that has been agreed and signed.
We DO NOT roll annual contracts and will contact you in advance to present a new contract for your review and agreement.
8 Price and Charges
The prices will be stated on the Proposal, Sales Order, MSA and Invoice.
Where Managed Services are changed during the course of the contract for whatever reason, and with your agreement, we will update the MSA and adjust the monthly price accordingly.
All sums referred to are exclusive of Value Added Tax (VAT) and will be payable on the submitted invoice.
9 Invoicing and Payment
Payment for product will be on ship to site unless otherwise agreed.
Payment for projects will be set out in the Sales Order and any associated documents (e.g., Statement of Work) that reference it.
You will be invoiced either monthly in arrears or quarterly in advance and will pay any charges by Card, bank transfer or Direct Debit within thirty (30) days of the date of the invoice, unless otherwise expressly agreed and set out on the Order Form.
If we can’t, for whatever reason, recover any sum due within thirty (30) days following the due date for payment, we will send a reminder and reserve the right to suspend all or any of the Services.
If the account remains unpaid (in any part) we may require a security deposit of three times the average monthly invoice or payment in full for the next twelve (12) months before we reinstate the Service.
If you want to dispute any charge on an invoice you must do so in writing within thirty (30) days of the date of the invoice and provide us with all relevant information in support of the disputed charge.
10 Site Access
We need to be able to access the site where the work will be carried out with reasonable notice. If
we can’t do this any work will be based on reasonable endeavours and not to the MSA terms.
You undertake to ensure that there are adequate health and safety provisions in place and that you hold third party public liability insurance with a level of cover of at least the minimum required by Law.
You will provide all consents, licences and permissions necessary from landlords or other third parties for any work undertaken at site.
You must identify contaminated areas at the Site prior to work. In the event that we discover contaminated areas at the Site then we will cease work until it’s removed, or the area is made safe for the works to resume. We will not be liable for any delay as a result of contamination.
11 Limitation of Liability
Unless otherwise stated in this Contract we make no warranty in respect of the supply of Equipment and/or Services and all other terms, conditions and warranties which may otherwise be implied into this Contract by law or course of dealings between us are hereby excluded to the fullest extent legally possible.
In no circumstances will our liability with this Contract (whether in contract, tort (including without limitation negligence) misrepresentation, breach of statutory duty or otherwise), in any Contract Year exceed 110% of the Price and/or Charges paid in the twelve (12) months prior to the date.
Under no circumstances will either of us be liable for any (a) loss of revenue; (b) loss of business; (c) loss of contracts; (d) loss of, damage to, or corruption of data; (e) loss of anticipated savings.(f) loss of profits; or (g) indirect, consequential or special losses; whether or not you knew or ought to have known that such losses or damages might be incurred.
Neither of us will be liable for any breach of contract, tort (including but not limited to negligence) misrepresentation, breach of statutory duty or otherwise caused by any reason outside the
reasonable control or responsibility of that party for any act of God, terrorist attacks, inclement weather, accidental damage, vandalism, failure or shortage or power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, any act or omission of Government, highways authorities, or other competent authorities.
Nothing in these Conditions excludes or restricts either of us for liability for death or personal injury resulting from negligence; (a) any fraud, fraudulent misrepresentation or fraudulent misstatement; (b) any indemnity given under the Contract; and/or (c) anything for which we cannot at law limit or exclude liability for.
12 Mutual Indemnity
We shall indemnify, keep indemnified and hold harmless each other against all costs (including without limitation legal costs and the cost of enforcement (on a full indemnity basis)) liabilities, claims, damages, direct, indirect or consequential losses (including without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss whether such losses are direct, indirect or consequential losses), expenses and/or judgments whatsoever, which it may suffer or incur, and arising from any: a) breach of any warranties, undertakings and/or representations given under the Contract and/or any failure to comply with any obligations, responsibilities and/or liabilities set out in the Contract; and/or b) injury and/or damage suffered or incurred by or to any employees and/or equipment whilst on the Site; and/or c) infringement (including, its affiliates, directors, officers, agents, consultants and employees) of any third party’s Intellectual Property Rights.
13 Suspension, Termination and Consequences
We may suspend Services to you without liability having given reasonable notice either orally (confirming such notification in writing) or in writing if: (a) you are in breach of a material term of these Conditions and/or the Contract and/or any other contract between us from time to time including but not limited to your failure to pay the Price and/or the Charges (or any of them) to us on the due date; (b) an Emergency occurs and/or we are obliged to comply with an order, instruction or request of the Government, an emergency services organisation or other competent administrative or regulatory authority: (c) We have reasonable grounds to believe that any of the Services are being used fraudulently, unlawfully or by an unauthorised third party
You will indemnify us in full against all loss (including, but not limited to, all losses incurred as a result of you terminating the Contract before the end of the Minimum Term which will include a minimum payment to us of the amount of the outstanding Annual Support Charges.
A Contract may be terminated by either of us by notice in writing if the other materially breaches its obligations under this Contract (including without limitation non-payment of charges due) and in the case of breaches which are capable of remedy either of us fails to remedy such breach within
fourteen days of written notice, such notice shall contain details of what the breach is and requesting that the breach is remedied.
Either of us may terminate all Contracts in the event that a liquidator (other than for the purpose of solvent amalgamation or reconstruction) trustee in bankruptcy, administrator or receiver is appointed in respect of the whole or part of the assets and/or undertaking of the other or the other enters into an arrangement or composition with its creditors, or other circumstances arise which entitle a court or creditor to appoint a receiver or administrator or to make a winding up order (save as in respect of a solvent reconstruction.
We will keep in confidence any information of the other; whether written or oral, of a confidential nature obtained under or in connection with the Contract except to the extent any disclosure is required by law. Neither of us will, without the consent of the other, disclose such information to any person other than:
If either of us receives a request under the Freedom of Information Act 2000 which encompasses any information provided in connection with the Contract the party will notify immediately of the request and give the other at least ten Business Days to make representations before releasing the requested information (save to extent otherwise required by law).
We will not pass Personal Data obtained to any third parties for marketing purposes by those third parties but may send you information about our own products and services which we consider may be of interest to you, unless you ask us not to.
You acknowledge that you will always remain the Data Controller and we will always only ever be a Data Processor.
15 Fraud and Security
You will ensure that user names and passwords are kept secure and confidential always and are only used by authorised users. You will inform us immediately if you know or suspect that a user name or password has been disclosed to an unauthorised user, or is being used in an unauthorised way, or if there is any illegal, fraudulent or unauthorised use of the Services or Equipment.
You accept and acknowledge that the Services are not guaranteed to be secure and that we do not guarantee the prevention or detection of any unauthorised attempts to access the Services.
You will ensure that your officers, employees, agents and any other persons who perform services for and on behalf of you in connection with a Contract:
- Comply with all applicable Anti-Bribery Laws
- Do not omit to do any act or thing which causes or may cause us to be in breach of and/orcommit an offence under any Anti-Bribery Laws
Provide us with such reasonable assistance as it may require from time to time to enable us to perform any activity required by any relevant government or agency in any relevant jurisdiction for compliance with any Anti-Bribery Laws.
17 Data protection
We will both comply with our obligations under the Data Protection Legislation at all times.
Where we transfer personal data to the other (the “Data Receiver”) the Data Transferor warrants that the Data Transferor has obtained the necessary consents to transfer the personal data to the Data Receiver and for the Data Receiver to process the data.
18 Intellectual Property Rights (IPR)
Any Intellectual Property Rights in connection with this Contract, shall be the exclusive property of the IPR ‘Inventor’ or assigned owner. Neither of us will disclose to any third party or use any such Intellectual Property Rights except to the extent that it is or becomes public knowledge through no fault of either, or as required for the performance of the obligations under this Contract. Any Intellectual Property Rights belonging to, licensed to or supplied to either shall be used as expressly permitted under the terms of this Contract.
Any existing Copyright prior to any agreement we form will remain the property of its original owner, it will not transfer. Any Copyright developed, or managed, for you during our agreement will be owned by you.
The Contract (and any non-contractual matters arising out of or in connection with it) will be governed by English law and to the exclusive jurisdiction of the English Courts.
The Contract is made for the benefit of us and (where applicable) our successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else and no third party shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Any notice, invoice or other document which may be given under the Contract will be in writing sent for the attention of the relevant person and delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first-class post or recorded delivery, 48 hours from the date of posting or if earlier upon receipt and, if deemed receipt under this condition is not within Normal Working Hours, at 9.00 am on the first (1st) Business Day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted. E-mail shall not be a valid method of serving notices under this Contract.
Any director or representative who signs on behalf of you will be deemed an authorised signatory and will be entitled to rely on such signatory as binding you to the obligations in this Contract in all respects.
Nothing in the Contract is to be construed as establishing or implying any partnership or joint venture between the parties, or as appointing any party as the agent or employee of any other party. No party shall hold out any other party as its partner or joint venture. except, and to the extent, that the Contract expressly states otherwise, neither may incur any expenses or negotiate on behalf of any other party or commit any other party in any way to any person without that others prior written consent.
The Contract constitutes the entire agreement between us and supersedes any prior agreement or arrangement in respect of its subject matter. Neither of us has entered into the Contract in reliance upon and nor shall they have any remedy in respect of, any representation or statement (whether made by the other or any other person) which is not expressly set out in the Contract.