Terms Of Business
By using this web site and ordering any of the products and services available
from Key 4 Ltd, you agree to be bound by our 'Terms of Business' that are
outlined below:
A. General Terms Of Business
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In this Agreement unless the context otherwise requires the following words and
expressions shall have the following meaning:
"Agreement"
means these general terms and conditions of business;
“we”
(and “us” and “our” in context) means Key 4 Limited and
any of its associated or subsidiary companies;
“you"
(and “your” in context) means the person(s), firm or company who
orders goods or services from us;
‘Normal Support Hours’
means Monday-Friday 9.30am to 5.30pm, but excluding any public holiday England
and the Christmas period;
“Hardware”
means computer hardware and peripherals;
“Software”
means application programs and systems programs;
“Server”
means any computer equipment operated or used by us as a server in connection
with the provision of the Hosting Services;
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This Agreement applies to the provision by us of all and any goods and services
that may be supplied by us to you from time to time. This Agreement supersedes
the terms and conditions of any purchase order from you and/or any other terms
and conditions which you make seek to impose upon our supply of goods and
services to you. Any variation of this Agreement shall have no effect unless
expressly agreed to in writing and signed by us. Placing your order with us
means your acceptance of this Agreement.
B. Quotations & Orders
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All quotations by us are non-binding and we reserve the right to withdraw a
quotation at any time before our acceptance of your order. All quotations for
Hardware and/or Software shall be valid for 7 days from the date of issue. All
other quotations shall be valid for 30 days from the date of issue unless
otherwise stated. No prices are to be treated as confirmed until an order is
accepted in writing by us.
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All orders for goods are accepted subject to the availability. Orders for
training and other services are accepted subject to the availability of staff,
appropriate equipment and transportation.
C. Commencement, Duration & Termination of this Agreement
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This Agreement commences on acceptance by us of your order and shall continue
until terminated in accordance with the provisions of this Agreement.
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We may terminate this Agreement forthwith on giving notice to you if:
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you fail to make any payment due to us under this Agreement within 7 days of
the date payment is due; or
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you commit any breach of any terms of this Agreement and if such breach is
capable of remedy you fail to remedy the breach within 14 days of the receipt
of a written request from us so to do; or
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an order is made or a resolution is passed for your winding up or if an order
is made for the appointment of an administrator to manage your affairs,
business or property or if a receiver is appointed over any of your assets or
undertaking or if circumstances arise which entitle a court or a creditor to
appoint a receiver or manager or which entitle a court to make a winding-up
order or if you take or suffer any similar or analogous action in consequence
of debt.
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Upon termination pursuant to Clause 3.2 you will pay to us all outstanding
fees, costs and expenses due arising in respect of the provision by us to you
of any goods or services pursuant to this Agreement together with any legal
costs we incur in securing payment from you and any interest due pursuant to
Clause 5.3.
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We may terminate this Agreement at any time by giving you not less than 60 days
written notice. In such circumstances we will refund to you (i) any monies
received by us from you for goods which you have ordered but which we have not
supplied to you and (ii) pro rata any monies received by us from you in respect
of any services we have agreed to supply to you which have not been fully
supplied at the date of termination of this Agreement. You agree that the
repayment of such money in either case shall be your sole remedy in the event
of such termination.
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You may terminate this Agreement at any time by giving us not less than 60 days
written notice. In such circumstances you will pay us (i) in full for any goods
which you have ordered from us which we have agreed to supply unless (at our
sole discretion) we agree to cancel such order (in which case we reserve the
right to charge an administration fee equal to [ ]% of the order value
excluding VAT) and (ii) pro rata for any services we have agreed to supply to
you which have not been fully supplied at the date of termination of this
Agreement.
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Termination of this Agreement howsoever or whenever occasioned shall be subject
to any rights and remedies we may have under this Agreement or in law.
D. Charges, Costs & Expenses
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All prices and charges are quoted exclusive of value added or other tax which
shall be paid by you in addition at the prevailing rate. Unless our quotation
says otherwise all prices and charges are for the delivery of goods or
provision of services to you at the location specified in the order.
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We reserve the right:
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to charge for advice for feasibility studies and for the preparation of
specifications and quotations for goods and services not included in our
original quotation and/or proposal. Such charges shall be payable whether or
not you then place an order;
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to increase any price quoted to take account of any extra costs we incur as a
result of site conditions, incorrect information supplied by you or a failure
or delay on your part in providing information or access; and
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when the price quoted is subject to the findings of any site survey to be
carried out, to increase any price by written notice to you taking into account
such findings;
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You shall for the purposes of this Agreement afford to our authorised personnel
during normal working hours full and safe access to any location at which we
are to deliver or install goods or render services to you pursuant to this
Agreement and shall provide adequate free working space and such other
facilities as may be necessary for the installation of any goods or provision
of any services to you.
E. Payment
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Unless otherwise agreed by us in writing or stated in this Agreement you shall
pay to us the full contract price for all goods or services ordered from us
immediately on our acceptance of your order.
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Where we provide any ongoing services to you these will be the subject of an
annual charge which must be paid annually in advance, the first payment being
due on the date we accept your initial order to provide such ongoing services
and then on the anniversary of such date each year thereafter while we continue
to provide such services to you.
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We shall be entitled to charge interest on late payments at the statutory rate
from the date payment was due from you until the date payment is received. In
addition we reserve the right to suspend the provision of any services or
delivery of any goods pending payment of any overdue amounts and to treat
non-payment of any overdue amount as repudiation by you of your Agreement with
us.
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We shall retain ownership of and title to all goods and other materials
supplied to you until such goods and other materials are paid for in full by
you.
F. Delivery & Installation
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Any times or dates specified for delivery, installation or completion are
approximate and are not of the essence of this Agreement. Delivery by
instalments may be made.
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Any goods to be supplied by us under this Agreement shall be deemed delivered
when you take physical delivery. All risk, damage or loss will be borne by you
from delivery.
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When you receive any goods from us you must inspect them for any defects or
non-conformity within 7 days. After this period, you will have accepted the
goods supplied. If we agrees to the return of any goods supplied these must be
in their original condition with packaging, with a return note and proof of
purchase; the return costs may also be payable by you.
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If the order states that we or the manufacturer of the goods in question are
responsible for installation we/they will install subject to Clauses 5 and 6
and you warrant to us that you are the owner of the premises or equipment upon
which the goods ordered from us are to be installed. If the order states that
installation is your responsibility you shall at your own risk and expense set
up and install the goods supplied by us in accordance with the instructions
supplied.
G. Hardware & Software Sales
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Where we assist you with selecting which Hardware and/or Software may be best
for your particular application we do so on the basis of the limited
information provided to us by you and it remains your responsibility to ensure
that any Hardware and Software ordered from us are suitable for your particular
purpose and you acknowledge that you have not relied on any representations
made by us in placing your order.
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Any Software that we supply to you which is not owned by us is supplied subject
to the licence and warranty terms of the Software’s licensor. We will
enclose the software licence that you require with the Software where
necessary; you must comply with that licence. If you choose not to accept a
Software licence we will only accept the return of the entire product for
refund provided that the product has not been installed and used by you and is
in its original unbroken packaging.
H. Network & Telecommunication Installation & Cabling
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Where our services to you consist of supplying and carrying out the
installation of any computer network or telecommunications system for you we
will be responsible for:
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Ascertaining your requirements from the information supplied to us by you and
by visiting location(s) at which the computer network or telecommunications
system is to be installed;
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Drawing up a specification for the computer network/telecommunications system
for your approval;
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Testing the computer network/telecommunications system installed by us for you
at the location(s);
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Providing you with support and maintenance of the components of the computer
network/telecommunications system supplied and installed by us for a period of
28 days from the date of installation by us after which you will receive
support only if you enter into an agreement under clause 10;
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Delivery Installation and Acceptance Testing
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We shall agree a suitable date for delivery and installation of the
network/system and for its testing.
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Following installation we will conduct an appropriate test in the presence of
your designated personnel sufficiently rigorous to prove that the computer
network/telecommunications system operates to the agreed specification.
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Upon successful completion of the acceptance test you shall sign an acceptance
certificate. If this is not received within 14 days of successful completion of
the acceptance test you shall be deemed to have accepted the network/system
unless you have notified us to the contrary within the said 14 days setting out
in reasonable details the basis for your non-acceptance.
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In the event that the computer network/telecommunications system fails to pass
the prescribed acceptance test or fails to meet the agreed specification you
shall afford us a reasonable opportunity of rectifying or replacing and
re-testing the network/system.
I. Network Support Services
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This clause will apply if we agree to provide you with computer network support
services. During the continuance of this Agreement, we may agree to provide you
with some or all of the following Network Support Services:
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Emergency Support: for an urgent problem you can telephone or fax us during the
Normal Support Hours. An urgent problem is degradation or failure of the
computer network.
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On-site Support: will be provided by us if specified in the order upon the
terms stated and where appropriate in the event that telephone support does not
resolve a relevant problem.
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Modem Support: allowing us to carry out remote diagnostics and maintenance. You
shall be responsible to ensure that the necessary telecommunications
connections are maintained to enable us to connect to your network and to give
us requisite access and permissions to carry out such support.
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Out-of-Hours Support: will be provided by us if specified in the order upon the
terms stated.
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Network Support Services shall be subject to the following conditions:
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The period for Network Support Services is a continuous period and includes all
working and non-working days and is irrespective of whether the network to be
supported is operational or not.
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Our telephone number for support is a normal landline to which calls are
charged at normal rates of the telephone service provider.
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We will not accept reverse-charge or collect calls nor will we engage in calls
of an unreasonably long and continuous nature where such support would be more
appropriately provided by the you booking training or should be dealt with by
an on-site visit.
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You will provide all relevant and requested information when calling for
telephone support, including the full text of any message, or printouts of any
screens, forms or reports to enable us to resolve any query.
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We will endeavour to resolve your query as fully and promptly as reasonably
possible.
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In the event of us being unable to resolve a query immediately on receipt of
your call or within a reasonable duration thereafter, we shall take the details
for further investigation and, within a reasonable time, call or fax you with a
proposed resolution or a progress report.
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The service operates as a queuing system on a first-come first-served basis and
calls will be processed strictly within this scope.
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The Network Support Service is limited to providing advice and guidance in
relation to the Hardware and/or Software stated in the order accepted by us.
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The service does not include fixes, patches, enhancements, upgrades or bespoke
programming (however fixes, patches or enhancements may be available to
licensed users direct from the manufacturer).
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We shall be entitled not to provide Network Support Services in the following
circumstances:
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where support is required on hardware or software products not stated on the
order for Network Support Services;
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where any outstanding monies are due from you to us;
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where you are in breach of a Software License in respect of which support is
sought or where we would be in breach by providing support;
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where you are unable to provide sufficient information regarding the enquiry to
enable us to provide support;
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where you are attempting to use the relevant hardware or software for anything
other than its intended purpose;
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where you have installed new software, hardware or operating systems or have
re-installed or re-configured the relevant software without first having
consulted us;
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where you, your employee or agent is not reasonably familiar with the basic
operation of a computer system and is unable to follow reasonable telephone or
written instructions and guidance.
J. Web Hosting Services
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While we may as part of the Hosting Services assist you in registering one or
more domain names in connection with the Hosting Services, registration and
maintenance of any domain names used by you in connection with the Hosting
Services or otherwise shall be your sole responsibility.
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We do not warrant or guarantee that any domain name applied for will be
registered in your name or is capable of being registered by you or us. The
registration of any domain name and it’s ongoing use is subject to the
relevant naming authority’s terms and conditions of use and you are
responsible for ensuring that you are aware of those terms and conditions and
can and do comply with them at all times. You waives any claim you may have
against us in respect of the decision of any naming authority to refuse to
register a domain name, or to withdraw registration of a domain name or in any
way to limit or restrict the use of a domain name at any time.
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We shall have no responsibility in respect of the use of any domain name by you
as part of the Hosting Services and any dispute between you and any third party
regarding the use of any domain name shall be a matter solely for you.
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Where any domain name is used by you in connection with the Hosting Services
you warrant to us that you are legally registered as and entitled to use such
domain name and that the use of the domain name does not infringe the rights of
any third party and you undertake to fully and effectively indemnity us at all
times whether during or after the provision of the Hosting Services in
connection with any costs, claims, liabilities or expenses which we may incur
as a result of such warranty being untrue.
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Where any domain name is used by you in connection with the Hosting Services
you warrant to us that you are legally registered as and entitled to use such
domain name and that the use of the domain name does not infringe the rights of
any third party and you undertake to fully and effectively indemnity us at all
times whether during or after the provision of the Hosting Services in
connection with any costs, claims, liabilities or expenses which we may incur
as a result of such warranty being untrue.
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you will not nor will you authorise or permit any other party to use the Server
in violation of any law or regulation;
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you will not knowingly or recklessly post or link to or transmit:
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any material that is unlawful, threatening, abusive, harmful, malicious,
libellous, defamatory, obscene, pornographic, profane or otherwise
objectionable in any way; or
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any material containing a virus or other hostile computer programme; or
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any material that could constitute or encourage a criminal offence or give rise
to a civil liability or that violates or infringes any trademark, copyright or
other intellectual property rights or similar rights of any person, firm or
company under the laws of any jurisdiction;
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You agree that you shall not use the Hosting Services to conduct any
transaction involving the transmission of credit card or other financial
information unless the website is a secured server site specifically provided
by us for the conduct of e-commerce transactions. Where the Hosting Services
are provided for the purpose of conducting such e-commerce transactions you
shall ensure that all such transactions and any information contained within
the website shall comply with all applicable laws including without limitation
any distant selling regulations and data protection regulations from time to
time in force in all applicable jurisdictions and shall clearly identify you as
the merchant for the purpose of such transactions.
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While we will use all reasonable endeavours to ensure the integrity and
security of any Server we do not guarantee that the Server will be free from
unauthorised users or hackers.
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While we shall use our reasonable commercial endeavours to provide continuing
availability of any Server we shall not be liable to you for any interruptions
or down time of the Server.
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Where as part of the Hosting Services we provide you with internet access or
email facilities you:
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will be responsible for the inter-operability between your computer system and
the public telephone service;
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will not use such internet connection for any illegal or unlawful purpose or
for the sending or receiving of any material which is offensive, abusive,
indecent, obscene, menacing or in breach of confidence, copyright, privacy or
otherwise or to transmit any virus or other harmful software or to hack into or
disrupt the operation of the internet or adversely affect the operation of any
other computer connected to the internet;
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will not run any scanning software which accesses remote computers or networks
except with the express permission of those remote computers or networks;
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will not use the Hosting Services for sending of unsolicited bulk mail or any
other form of email abuse nor to run any open mail relay service which accepts
mail from unauthorised or unknown senders and forwards it onwards to a
destination outside of your machine or network;
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You will be responsible for the sending of any email in accordance with any
relevant legislation and will take all responsible steps to ensure accurate and
prompt routing of messages and we shall have no liability for non-receipt or
misrouting or any other failure of email.
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Where in the course of providing the Hosting Services we provide you with the
use of or access to any software you agree and undertake to use such software
in compliance with the terms and conditions of use of any licence imposed by
the owner of the intellectual property rights in the software.
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You grant us for the duration of the provision of the Hosting Services a
non-exclusive, non-transferable licence to host your website on the Server in
accordance with the provisions of this Agreement for the purposes of providing
the Hosting Services to you.
K. Website Design & Development Agreement
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We will use our care and skill in providing the Design and Development Services
to you to meet the criteria specifically agreed in advance with you in writing
for the Design and Development Services. You are responsible for ensuring that
the Design and Development Services supplied by us are suitable for your
purposes. If for any reason you consider that the Design and Development
Services do not meet the agreed criteria you must notify us within 48 hours of
the matter coming to your attention setting out in reasonable detail the matter
complained of or you shall be deemed to be satisfied with the quality and
suitability of the Design and Development Services provided.
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Where the Design and Development Services consist of the creation of original
design and/or website development work then subject to any special terms and
conditions agreed with you, we will submit such work to you for your approval
in accordance with the schedule agreed with you in advance in writing. You will
be responsible for reviewing and approving such work within 14 days of the date
of delivery to you of the work by us. In the event that you consider the work
does not meet your requirements you must notify us within the 14 day period
setting out in writing in reasonable detail how such work does not meet your
requirements. Otherwise, at the end of such 14 day period you will be deemed to
have approved the work and we shall be entitled to continue with the next phase
of the Design and Development Services.
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We can accept no responsibility for inaccuracies in any material created as
part of the Design and Development Services and it shall be your sole
responsibility to proof read and correct where necessary any errors in any
material presented to you. You warrant to us that any material which you
require us to publish or incorporate into the Design and Development Services
does not contain any defamatory, indecent, obscene or otherwise unlawful
material and does not infringe any copyright or other third party intellectual
rights. If in our absolute discretion we believe that any material that we are
asked to incorporate into the Design and Development Services is in breach of
this warranty, we shall be entitled to omit such material provided that we
shall notify you in writing.
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You will promptly furnish us with such information and documents which we may
reasonably request and provide access to your relevant personnel which we may
require to available to us (free of charge) to enable us to provide the Design
and Development Services;
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If either party requests a change to the Design and Development Services from
the initially agreed criteria notification will be sent to the other party
detailing the change requirements. If sent by us we shall state the effect such
a change shall have on the quote and if such a request is received from you we
shall treat as receipt to provide the Customer with the effect as such a change
shall have on the quote. We shall not institute any changes unless we agree
with you the changes to be made and subject to agreement on any change to the
agreed fees for the provision of the Design and Development Services.
L. Warranties
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We do not give any warranty that any goods supplied by us are fit for any
particular purpose unless that purpose is specifically advised to us in writing
by you and we confirm in writing that the goods can fulfil that particular
purpose.
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We do not warrant that any goods supplied by us will achieve any particular
performance criteria unless we have specifically guaranteed such criteria in
writing subject to specified tolerances.
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Except as expressly provided in this Agreement no warranty, condition,
undertaking or term express or implied statutory or otherwise as to the
condition, quality, performance, merchantability, durability or fitness for
purpose of any goods supplied by us is given or assumed by us and all such
warranties, conditions, undertakings and terms are to the fullest extent
permitted by law hereby excluded.
M. Intellectual Property Rights
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The copyright or any other intellectual property rights in:
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any material supplied by you to us shall belong to you;
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any material produced by us for you in the course of supplying our services to
you shall, unless otherwise agreed in writing between us, belong to us, subject
only to your right to use such materials for the purposes of utilising our
services to you.
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You warrant to us that any material supplied to us by you and its use by us for
the purpose of providing our services will not infringe the copyright or other
rights of any third party, and you shall fully and effectively indemnify us
against any loss, damages, costs, expenses or other claims arising from any
such infringement.
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We warrant to you that any material supplied to you by us in the course of
providing our services will not infringe the copyright or other rights of any
third party if used in the United Kingdom for the intended purpose, and we
shall fully and effectively indemnify you against any loss, damages, costs,
expenses or other claims arising from any such infringement.
N. Confidentiality
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Neither party shall at any time during or after the termination of this
Agreement divulge or allow to be divulged to any person any confidential
information relating to the business or affairs of the other party save as
expressly required in order to undertake the activities described in this
Agreement or as required by any Court or other body of competent jurisdiction
save where such information comes into the public domain other than as a result
of a breach of this Clause by either party.
O. Data Protection & Management
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The parties hereby undertake to comply with the provisions of the Data
Protection Act 1998 and any related legislation insofar as the same relates to
the provisions and obligations of this Agreement.
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We acknowledge that any data supplied to us in the course of providing our
services to you is your property or belongs to the party from whom you obtained
it. You hereby authorise us to use such data during the term of this Agreement
as is necessary for the performance by us of our obligations under this
Agreement. We will not use your data for any other purpose other than
performing the Services.
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On the termination of this Agreement we will return to you your data in our
possession in a format that is agreed in advance with you.
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Where you provide us with any data it remains at all times your responsibility
to ensure that you retain sufficient back-up copies of such data and we shall
not be liable to you on any basis in the event that any such data is corrupted,
lost or so degraded as to be unusable as a result of any act or omission on our
part in the course of providing our services to you.
P. Force Majeure
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We shall have no liability under or be deemed to be in breach of this Agreement
for any delays or failures in performance of this Agreement which result from
circumstances beyond our reasonable control. If such circumstances continue for
a continuous period of more than 3 months, either party may terminate this
Agreement by written notice to the other party. Any costs arising from such
delay shall be borne by the party incurring the same.
Q. Partial Invalidity
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If any Clause is held to be invalid under any applicable statute, or rule of
law, it is to that extent to be deemed omitted from this Agreement.
R. Liability
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In no event will we liable for any damages resulting from the loss of data or
use, loss of profits or contracts, nor for any damages that are an indirect or
secondary consequence of any act or omission by us whether such damages are
reasonably foreseeable or actually foreseen.
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Our total liability to you for direct damage in connection with the performance
of our obligations under this Agreement shall be limited to the order price for
the relevant goods or services.
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You acknowledge and agree that the limitations contained in this Clause are
reasonable in light of all the circumstances.
S. Waiver
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No waiver by either party of any of rights under this Agreement on one or more
occasions shall prejudice its ability to enforce such rights on other
occasions.
T. Assignment
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This Agreement is personal to the parties and this Agreement may not be
assigned by you without our prior written approval.
U. Non-Solicitation
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You will not without our prior written consent solicit or endeavour to entice
away from us any employee who are directly engaged in the performance of
obligations to you under this Agreement unless such employee has been dismissed
on grounds of redundancy or is employed by you as a result of a response by
that employee to a public advertisement where the main purpose of the advert
was not to solicit that employee.
V. Notices
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All notices under this Agreement shall be in writing and sent to the address of
the recipient last know to the sender.
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Notice shall be deemed to have been duly given:
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when delivered, if delivered by courier or in person during normal business
hours of the recipient; or
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on the third business day following posting, if sent by first class prepaid
post.
W. Subcontracting
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We may perform any or all of our obligations under this Agreement through
agents or sub-contractors, provided we shall remain liable for the performance
of such agents and subcontractors.
X. Interpretation & Jurisdiction
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This Agreement and all matters arising from it shall be governed by and
construed in accordance with English Law and shall be subject to the exclusive
jurisdiction of the English courts.
Y. Rights of Third Parties
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None of these terms shall be enforceable under the Contracts (Rights of Third
Parties) Act 1999 by a third party unless expressly provided for in this
Agreement.
Z. Severance
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If any provision of this Agreement is prohibited by law or judged by a court to
be unlawful, void or unenforceable, the provision shall, to the extent
required, be severed from this Agreement and rendered ineffective as far as
possible without modifying the remaining provisions of this Agreement, and
shall not in any way affect any other circumstances of or the validity or
enforcement of this Agreement.