CF Systems Ltd – Terms and Conditions
CF Systems Limited (company number 04231017)
50 Cardrew Way, Cardrew Industrial Estate, Redruth, Cornwall TR15 1SS
Terms and conditions for Client Service Level Agreement
THE CUSTOMER IS ASKED TO NOTE IN PARTICULAR THE LIMITATION OF LIABILITY PROVISIONS AT CLAUSE 12 BELOW
Throughout this document, reference to these terms is to the terms and conditions set out in this document, reference to ‘we’, ‘us’, ‘our’ or similar terms is to CF Systems Limited and reference to the ‘Customer’ is to the person firm or company purchasing services and/or goods from us in accordance with the order as accepted by us (‘Order’).
2. Terms of the legal contract
The Order and these terms comprise the terms of the legal contract between us and the Customer for the goods and services to be provided by us as set out in the agreed Order. No draft Order or quotation is binding on us, and there is no legal contract for the supply of the goods and services set out in the draft Order or the quotation unless and until agreed by the client and expressly accepted by us.
In the event of any ambiguity or conflict between these terms and the Order, the provisions of these terms will prevail.
3. Cancellation and changes to the contract
The Customer may not cancel the contract without our prior consent. We are not obliged to accept any request for cancellation, but if we do so then we will be entitled to charge the Customer for all costs and charges that we suffer as a result (such as non-refundable travel or accommodation costs and cancellation fees of our suppliers) and our loss of profit in respect of the cancelled contract. We may require payment from the Customer of all such costs and charges before any cancellation is effective.
No variation to these terms or the Order will be binding on us unless and until accepted by us in writing.
The price for all goods delivered in accordance with the contract will be the price set out in the Order, or as otherwise agreed in writing by us with the Customer.
We reserve the right in all cases to require the payment by the Customer in advance of delivery of a deposit for goods ordered by the Customer. The amount of the deposit required will be the cost price to us (including delivery and insurance) for the goods or such other amounts as set out in the Order. We may invoice for goods, taking account of any deposit already paid, at any time after delivery.
Services will be provided at the fee or rate set out in the Order.
All fees and rates set out in the Order exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom we engage in connection with the provision of the services. Such expenses, and any other excluded items set out in the Order, will be charged to the Customer at their cost price to us or as otherwise set out in the Order.
The Customer will be invoiced for services provided at the intervals set out in the Order or, if not set out in the Order, on a monthly basis.
Unless otherwise stated in the Order, all charges quoted to the Customer for goods and services are exclusive of VAT which we will add to our invoices at the appropriate rate.
All invoices must be paid by the Customer in full without any set-off, counterclaim, deduction or withholding and in cleared funds, within 7 days of the date of invoice, to a bank account nominated in writing by us. We reserve the right to charge interest at such rate as is permitted under The Late Payment of Commercial Debts (Interest) Act 1998 on all overdue amounts and/or to suspend the delivery of goods and the provision of services, without liability to the Customer, while any amount payable under the contract remains overdue.
5. Supply of Goods
Subject to these terms, the goods (if any) to be provided by us will in all material respects be as set out in the Order. However, availability and price for IT equipment fluctuates greatly and we have to reserve the right to cancel the supply of any specified goods or to substitute the specified goods with goods of at least the same quality and functionality as those set out in the Order where we are no longer able to source the exact goods set out in the Order for the same price as when the draft Order or quotation was issued to the Customer.
We will endeavour to contact the Customer as soon as it becomes apparent to us that we will need to cancel any goods ordered or provide substitute goods. Where the goods or comparable goods remain available but only at a higher price, we will contact you and offer you the option of continuing with the order but paying the additional costs that we will incur as a result. We will not increase our prices for goods to be supplied under the contract without your agreement. In the event that we have to cancel the supply of any goods that are material to the provision of the services, the Customer will be entitled to cancel the contract for all of the goods and our supply of the services provided that it informs us of such cancellation within 5 working days of our informing the customer of the cancellation of the goods order.
6. Delivery of goods
Unless otherwise agreed by us, delivery of goods will be to the Customer’s premises set out in the Order. We will arrange delivery by our preferred delivery method to those premises at our cost (unless set out separately in the Order as a cost to the Customer).
The Customer must notify us within 2 working days of the delivery date of any missing items or any damage to any goods that is evident on a reasonable inspection. If the Customer fails to do so then it will be deemed to have accepted the goods as being complete and undamaged at the time of delivery.
In the event that we are unable to effect delivery because the Customer fails to take the goods or gives incorrect or incomplete delivery instructions to us, we will endeavour to arrange an alternative delivery date with the Customer but we reserve the right to charge the Customer all additional costs that we incur as a result of the non-delivery. This includes further transportation and insurance costs and restocking charges actually incurred by us, and any costs for storage and insurance of the items beyond the original delivery date. If a new delivery date has not been agreed with the Customer within 10 working days of the non-effective delivery, we may resell or otherwise dispose of part or all of the goods and, after deducting reasonable storage and selling costs, apply the proceeds of sale to any outstanding financial liability of the Customer to us.
We will not be liable for any delay in or failure of delivery of goods that is caused by any circumstance beyond our reasonable control, such as (but not limited to) strike, lockout, fire, accident, adverse weather conditions, or delays from our own suppliers.
7. Risk in and title to goods
Risk in the delivered goods will pass to the Customer at the point of unloading at the delivery location.
All goods delivered by us for sale to the Customer will remain our property until the price payable for those goods has been paid to us in full.
Until title to the goods has passed to the Customer, the Customer (i) must store the goods as our bailee, separately in a manner so that they remain readily identifiable as our property; (ii) must not remove, deface or obscure any identifying mark or packaging on or relating to the goods; (iii) must keep the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and (iv) authorises us and our agents to enter any premises of the Customer or of any third party where the goods are stored in order to recover them. Notwithstanding these terms, the Customer may resell or use the goods in the ordinary course of its business (but not otherwise) before we receive payment for them.
The Customer is responsible for obtaining and for complying with all licences in respect of the Customer’s use of any software product supplied by us and will indemnify us in respect of all claims costs demands expenses and other liability that we may suffer as a result of the Customer’s use of any software supplied by us. This indemnity does not apply in respect of any claims by third parties for infringement of intellectual property rights by reason of the Customer’s use in accordance with our instructions of any bespoke software that we have created for the Customer.
8. Warranty for goods delivered
We will use our reasonable endeavours to pass on to the Customer any manufacturer’s or third party supplier’s warranties relating to goods supplied by us.
We warrant that the goods delivered will be of satisfactory quality at the time of delivery and that, except in the case of goods we are hiring to the Customer, we are able to provide legal title to the Customer for the goods delivered.
Where we have made the goods to the Customer’s specification, we further warrant that the goods will be free of defects in workmanship and materials at the time of delivery and for a period of 12 months after delivery.
All other warranties are, to the extent permissible at law, excluded.
9. Supply of services
We will use our reasonable endeavours to supply the services at the times and locations and in the manner in all material respects as set out in the Order. The agreed services will be provided with all due care and skill.
Subject to the termination provisions in these terms and provided that the Customer complies with its obligations under these terms, we will provide the services for the full term specified in the Order.
Where the Order is not for an indefinite or fixed period, the services will be provided on such date or dates as agreed with the Customer or as soon as possible thereafter.
10. Dates for delivery of goods / provision of services
Any dates stated for delivery of goods or provision of services are approximate only and time is not of the essence under the contract. On our becoming aware of any delay or anticipated delay in delivery or performance, we will use reasonable endeavours to notify the Customer of this and to minimise the delay.
The Customer must at all reasonable times at its own expense ensure that we and our personnel and contractors engaged in the provision of the services have all reasonably required access to premises (including physical access and by remote means to the Customer’s data and IT systems) and to the Customer’s personnel for the proper provision by us of the services. The Customer must ensure that any of our staff contractors and agents attending any premises of or used by the Customer are informed of all applicable health and safety rules and regulations.
Except where we are hosting equipment for the Customer under the Order, the Customer is responsible for keeping all equipment required in relation to the services, including goods delivered by us, in good working condition and properly stored in accordance with the relevant manufacturer’s and supplier’s instructions or guidelines. Where forming part of the services to be supplied under the Order, we will provide suitable advice and support to the Customer in relation to its obligations under this provision.
The Customer must obtain and maintain all necessary licences and consents (including software licences) and comply with all relevant legislation in relation to its operation and use of the IT system and its business.
We will not be liable to the Customer for any delay, interruption or failure in the provision of the services arising from any failure by the Customer to comply with its obligations under these terms.
We acknowledge that in providing the services we and our personnel may have access to sensitive commercial information of the Customer. We undertake that we will not, and will use our reasonable endeavours to ensure that none of our personnel, at any time disclose to any third person any technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to us by the Customer or its employees, agents, consultants or subcontractors.
This obligation of confidence does not apply to any information that is or becomes in the public domain other than by reason of any breach of confidence by us or our personnel or to any information the disclosure of which is required by law, a court of competent jurisdiction or any governmental or regulatory authority.
The Customer undertakes to us in the same terms in relation to our information of a confidential nature.
13. Limitation of liability
Nothing in these terms limits or excludes our liability for (i) death or personal injury caused by our negligence; (ii) fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
Subject to the foregoing, we will not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill, loss of use or corruption of software, data or information, or any indirect or consequential loss.
Subject to the foregoing, if we are liable to you under or in connection with the contract then our total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to:
(a) for goods delivered, the cost in the cheapest readily available market of replacement goods of the same quality as the goods to which the liability relates;
(b) for services provided, (i) the amount or amounts set out in the Order or (ii) if there are no such limitations, then an amount equivalent to the total charges invoiced to the Customer for the affected services over the period of 12 consecutive months up to and including the last date of provision of the affected services.
Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 21 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) or the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
15. General legal terms
No failure or delay by a party to exercise any right or remedy provided under the contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of the contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the contract.
This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement. We may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and obligations under this agreement, provided that we give prior written notice to the Customer.
No one other than a party to the contract shall have any right to enforce any of its terms.
The contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the contract or its subject matter or formation (including non-contractual disputes or claims).