Acuutech Conditions for the Supply of IT services and Goods

Acuutech Conditions for the Supply of IT services and Goods

These terms apply to all Goods and/or Services supplied by Acuutech and prevail over any Customer terms other terms whether implied by law, trade custom, practice or course of dealing. The Customer’s standard terms are excluded.

1. Interpretation

1.1. Definitions:

Contract: these terms together with any Purchase Order or SOW accepted by Acuutech.

Customer: the person, firm or company purchasing Services and/or Goods.

Deliverables: all products and materials developed by or provided by Acuutech in relation to the Project in any media, including computer programs, data, diagrams, reports and specifications (including drafts).

Delivery Location: has the meaning given in clause 5.2.

End User: any person, firm, or company (excluding the Customer) to whom Goods and/or Services are supplied, directly or indirectly, including pursuant to a Microsoft ECIF or any other agreement between Acuutech and a third party.

Goods: the goods (or any part of them) sold by Acuutech to the Customer.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Purchase Order: the Customer’s order for Good and/or Services on Acuutech’s standard form.

Project: the project as described in the SOW.

Project Milestone: a date by which a Project or part of the Project is estimated to be completed, as set out in the SOW.

SOW: the Scope Of Works describing the Services, the Project, the charges and any necessary additional terms (including timeframes, Project Milestones and parties responsibilities) in connection with the provision of the Services.

Services: the services to be provided by Acuutech under this Contract and in accordance with any SOW.

2. Effect of a Purchase Order

2.1. The Purchase Order constitutes an offer by the Customer to purchase the Services or Goods specified in it on the terms of this Contract. The signing and return of the acknowledgement copy of the Purchase Order form by Acuutech, or Acuutech’s commencement of the Services or delivery of Goods pursuant to the Purchase Order, shall establish a contract for the supply and purchase of those Services or Goods on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Purchase Order or any other communication shall not govern the Contract regardless of when they are supplied.

3. Supply to End Users

3.1 Where Goods and/or Services are to be provided to an End User, they are supplied strictly as subcontractor to the Customer.

3.2 Acuutech does not contract with any End User and does not assume any responsibility or duty of care to the End User, whether in contract, tort (including negligence), statute, misrepresentation or otherwise.

3.3 The Contracts (Rights of Third Parties) Act 1999 is excluded. No End User shall have any right to enforce any term of this Contract.

3.4 The Customer shall not represent that Acuutech is responsible or accountable to any End User.

3.5 All communications, instructions, obligations, disputes or issues concerning the End User, shall be the sole responsibility of and shall be managed and resolved by, the Customer.

3.6 The Customer shall indemnify and keep fully indemnified Acuutech against all claims, proceedings, losses, liabilities, damages, costs and expenses (including legal costs on a full indemnity basis) arising out of or in connection with: (a) any claim by an End User or third party relating to the Goods and/or Services; (b) any act or omission of the End User; and (c) any breach by the Customer of its agreement with an End User, except to the extent finally determined to have been caused by Acuutech’s fraud or wilful misconduct.

3.7 The Customer is solely responsible for ensuring that the End User is aware of and complies with all relevant service levels, limitations and dependencies. Acuutech shall not act on any instruction from an End User unless confirmed in writing by the Customer.

3.8 Where requested, the Customer shall procure that its contract with the End User: (a) contains limitations of liability, exclusions and restrictions no less protective than those contained in this Contract; (b) expressly extends to Acuutech and its subcontractors, the benefit of the limitations and exclusions the Customer has with the End User, pursuant to the Contracts (Rights of Third Parties) Act 1999; and (c) confirms that Acuutech shall have no greater liability to the Customer in respect of End User matters than it would have had to the End User under that contract.

3.9 Without prejudice to the limitations in this Contract, Acuutech shall not be liable to the Customer for any loss, liability or claim arising from or in connection with an End User except to the extent caused by Acuutech’s fraud or wilful misconduct and in any event, Acuutech’s total liability shall not exceed that set out in this Contract..

4. Supply of Services

4.1. Acuutech shall use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Customer, in accordance with the SOW.

4.2. Acuutech shall use reasonable endeavours to meet any dates, including Project Milestones in accordance with the SOW, but any such dates shall be estimates only and time shall not be of the essence of the Contract.

4.3. Acuutech shall appoint a project manager who shall oversee and manage the Project. Acuutech shall use reasonable endeavours to ensure that the same person acts as throughout the Project, but may replace him or her where reasonably necessary in the interests of Acuutech’ s business.

5. Acuutech’s supply of Goods

5.1. Acuutech shall provide the Goods as described in the Purchase Order but does not guarantee the availability of the Goods. If Acuutech cannot supply the Goods within a reasonable period of time, it shall be entitled to cancel this Contract without any liability.

5.2. Acuutech shall deliver the Goods to the location set out in the Purchase Order or such other location as the parties may agree (Delivery Location). Delivery is completed after unloading of the Goods at the Delivery Location at which time risk in the Goods shall pass to the Customer.

5.3 Any dates quoted for delivery are approximate only. Time of delivery is not of the essence. Acuutech shall not be liable for any delay in delivery of the Goods that is not caused entirely by Acuutech or is due to the Customer’s failure to provide Acuutech with adequate instructions.

5.4 Acuutech may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5.5 Title to the Goods shall not pass to the Customer until Acuutech receives payment in full for the Goods and any other goods that Acuutech has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.

5.6 Until title to the Goods has passed to the Customer, the Customer shall:

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Acuutech’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) give Acuutech such information as Acuutech may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Customer.

5.7 If the Customer fails to accept delivery of the Goods within three days of Acuutech notifying the Customer that the Goods are ready, then:

(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third day after the day on which Acuutech notified the Customer that the Goods were ready; and

(b) Acuutech shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

6. Customer’s obligations for Goods and Services

6.1. The Customer shall:

(a) pay all sums to Acuutech when due and where relevant, regardless as to whether the Customer has been paid by an End User;

(b) co-operate with Acuutech in all matters relating to the Project and appoint a project manager, who shall have the authority to contractually bind the Customer on matters relating to the Project;

(c) provide in a timely manner such access to the Customer’s or End User’s premises and data, and such office accommodation and other facilities, as required by Acuutech;

(d) provide in a timely manner such information as Acuutech may request, and ensure that such information is accurate in all material respects; and

(e) be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.

6.2. The Purchase Order constitutes an offer by the Customer to purchase the Goods in accordance with this Contract. The Customer is responsible for ensuring that the terms of the Purchase Order and any specifications are complete and accurate. Any samples, descriptive matter or advertising produced by Acuutech and any descriptions or illustrations contained in Acuutech’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

6.3. The Customer is responsible for ensuring that all users of the Goods and Services are trained in the proper use and operation of them.

6.4. If Acuutech’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, the End User or the Customer’s agents, subcontractors or employees, Acuutech shall have no liability for any loss or damage, and the Customer shall pay to Acuutech on demand all reasonable costs, charges or losses sustained or incurred by it as a result.

6.5. The Customer shall not, without the prior written consent of Acuutech, at any time from when it has notice of these terms and for six months after the completion/delivery of the Goods and/or Services, solicit or entice away from Acuutech or employ or attempt to employ any person who is, or has been engaged as an employee or subcontractor of Acuutech or whom assisted in any Project.

7. Change of Services

7.1 The Customer’s project manager shall meet as and when requested by Acuutech to discuss matters relating to the Project. If either party wishes to change any part of a Project, SOW or Service, it shall submit details of the requested change to the other in writing (Change Request).

7.2 Upon receipt of a Change Request, Acuutech shall provide to the Customer details of any impact the change shall have on this Contract, including any change in Project Milestones and charges. The Customer shall not unreasonably withhold or delay consent to a Change Request from Acuutech.

7.3 Acuutech has no obligation to accept a Change Request unless the Customer accepts all changes or variations, including charges, caused as a result of the Change Request.

8. Charges and payment

8.1 If any charges for Goods and/or Services are payable by a third party and that third party fails to make payment in accordance with any relevant agreed payment terms, Acuutech reserves the right to:

(a) terminate or suspend the provisions of any current or future Goods and/or Services; and

(b) claim and accept payment from the Customer for the charges payable by the third party for the relevant Goods and/or Services

8.2 A quotation shall not constitute an offer, and is only valid for 20 working day from the date of issue.

8.3 Where the Services are provided on a time-and-materials basis, unless stated otherwise in the SOW:

(a) the charges payable for the Services shall be calculated in accordance with Acuutech’s standard daily fee rates as amended from time to time and based on standard hours being an eight-hour day between 8.00 am and 5.00 pm weekdays only.

(b) An overtime rate of 50% of the standard rates shall apply for Services supplied outside standard hours. Pro rata rate shall apply for Services provided for less than a day.

(c) Time sheets shall be recorded for all time spent on a Project and such time sheets will be used to calculate the charges covered by each invoice raised.

(d) Acuutech shall invoice the Customer as and when required, to cover the relevant period and any expenses, materials and third party services.

8.4 The charge for Services based on a fixed price, shall be confirmed in the Purchase Order or the SOW. Payment shall be due as set out therein or on completing any Project Milestone.

8.5 Any fixed price excludes the cost of travelling and any other ancillary expenses reasonably incurred in connection with the Services, the cost of any materials or services reasonably and properly provided by third parties required for the supply of the Services and VAT at the appropriate rate.

8.6 The Customer shall pay each invoice in full and in cleared funds, within 14 days of receipt. Time for payment shall be of the essence of the Contract. No variation or relaxation of any payment terms shall apply in the event any delay or failure to pay is due to any act or omission of any End User.

8.7 Without prejudice to any other right or remedy that Acuutech may have, if the Customer fails to pay any invoice on the due date Acuutech may:

(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and

(b) immediately suspend or terminate all Services to the Customer or any End User, until payment has been made in full.

8.8 The price of the Goods shall be the price set out in the Purchase Order, or, if no price is quoted, the price set out in Acuutech’s published price list in force as at the date of delivery.

8.9 Acuutech may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a) any factor beyond Acuutech’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or type of Goods ordered;

(c) any delay caused by any instructions of the Customer or failure of the Customer to give adequate or accurate information;

(d) any costs and charges of packaging, insurance and transport of the Goods.

8.10 All amounts due under this agreement shall be paid by the Customer to Acuutech in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Acuutech may, without prejudice to any other rights it may have, set off any liability of the Customer to Acuutech against any liability of Acuutech to the Customer.

9. Intellectual Property Rights

9.1 All Intellectual Property Rights and all other rights in the Deliverables and Acuutech’s tools, software, systems, methodologies and materials existing before the Services and created in the course of the Services remain vested in and shall vest in Acuutech.

9.2 Acuutech grants the Customer a non-exclusive, non-transferable, non-sublicensable, revocable licence to use the Deliverables solely for its internal business purposes and in connection with the Services. All licences terminate automatically on termination unless otherwise agreed.

9.3 The Customer acknowledges that the Customer’s use of any third party rights, whether in any Deliverables and materials, are subject to the terms of the relevant end-user licence or sub-licence and can be withdrawn by the third party without notice.

10. Confidentiality and Acuutech’s property and compliance with policies

10.1 The terms of this clause shall survive the termination of this Contract howsoever terminated.

10.2 The Customer shall keep in strict confidence, the Confidential Information, which includes:

(a) all technical or commercial know-how, specifications, inventions, processes or initiatives disclosed to the Customer by Acuutech or its agents;

(b) all business, technical, security, pricing, software, systems, datasets and trade secrets;

10.3 The Customer shall restrict disclosure of Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer’s obligations, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

10.4 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Contract. A party’s Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party’s lawful possession before the disclosure;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

10.5 Subject to the above, each party shall protect the other’s Confidential Information and restrict access to any third party, other than as permitted herein.

10.6 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction. To the extent it is legally permitted to do so, the disclosing party shall give the other party as much notice of such disclosure as possible.

10.7 All materials, equipment and tools, drawings, specifications and data supplied by Acuutech to the Customer shall at all times be and remain the exclusive property of Acuutech, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Acuutech, and shall not be disposed of or used other than in accordance with Acuutech’s written instructions or authorisation.

10.8 The parties shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and shall not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if the activity, practice or conduct had been carried out in the UK.

10.9 The Customer acknowledges damages may be inadequate and Acuutech is entitled to injunctive relief.

11. Data Protection

11.1 The Customer shall comply with Acuutech’s relevant business policies as notified to the Customer and will approve and sign any GDPR or other data protection policies or documents relevant to the Services.

11.2 The Customer warrants and represents that it has, and shall maintain throughout the term, all necessary rights, authorities, consents and lawful bases required under Data Protection Legislation to permit Acuutech to process any Personal Data and to provide the Goods and/or Services to any End User, including where Acuutech acts as processor or sub-processor.

11.3 The Customer is and shall remain the controller (or instructing processor) in respect of all Personal Data processed by Acuutech in connection with the Goods and/or Services, and Acuutech shall be entitled to act solely on the documented instructions of the Customer. The Customer is responsible for the accuracy, quality and lawfulness of all data and instructions provided.

11.4 Neither the End User nor any third party is entitled to rely on any act, omission, information, output or deliverable of Acuutech. The Customer acknowledges that Acuutech does not provide advice, representations or assurances to any End User and assumes no responsibility for any reliance placed upon the Goods and/or Services by an End User.

11.5 The Customer is solely responsible for: (a) assessing the suitability of the Goods and/or Services for any End User purpose; (b) the interpretation and use of any outputs, Deliverables or information; (c) compliance with all laws, regulations and industry requirements applicable to the End User’s activities; and all communications, disclosures and representations made to any End User.

11.6 The Customer shall indemnify and keep fully indemnified Acuutech against all claims, losses, liabilities, regulatory action, fines, penalties, costs and expenses (including legal costs on a full indemnity basis) arising out of or in connection with any breach by the Customer or an End User of Data Protection Legislation, any allegation that the processing of Personal Data in accordance with the Customer’s instructions infringes the rights of any data subject, any failure by the Customer to obtain or maintain valid consents, notices or lawful bases or any act or omission of an End User.

11.7 The Customer shall be solely responsible for responding to any enquiry, complaint, investigation or enforcement action from a supervisory authority or regulator relating to End User data or activities, and shall promptly notify Acuutech of any such matter which may affect the Services.

11.8 Where Acuutech processes Personal Data, it shall implement appropriate technical and organisational security measures and may use sub-processors, provided that responsibility for End User compliance and transparency obligations remains with the Customer.

11.9 Nothing in this Contract or in Acuutech’s provision of the Goods and/or Services confers any right or remedy on an End User or other third party, including under the Contracts (Rights of Third Parties) Act 1999.

12. Limitation of liability

12.1. Nothing in these conditions excludes the liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation.

12.2 Subject to the above, Acuutech shall not be liable for any liability for its acts or omissions or those of its employees, agents and subcontractors, in respect of:

(a) any breach of this Contract or the Customers contract with the End User where relevant, however arising;

(b) any use made by the Customer or the End User of the Services, Goods, the Deliverables or any part of them;

(c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract;

12.3 All warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted.

12.4 Acuutech shall have no liability for any failure to deliver the Goods or Services or meet any time frame, to the extent that such failure is partly or entirely caused by any circumstances outside of Acuutech’s control including, but not limited to, the End User’s or the Customer’s failure to provide adequate delivery or any other instructions that are relevant to the supply of the Goods and/or Services; strikes, lock-outs or other industrial disputes (whether involving the workforce of Acuutech or any other party); failure of a utility service or transport network; act of God, lockdown, contamination, war, riot or civil commotion; malicious damage; compliance with any law or governmental order, rule, regulation or direction; or accident, breakdown of plant or machinery, fire, flood, storm; or default of Acuutech’s subcontractors.

12.5 Acuutech shall, at its option, repair or replace any defective Goods, or refund the price of the defective Goods, if:

(a) the Customer gives notice in writing within 1 week of delivery that the Goods are defective; and

(b) Acuutech is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by Acuutech) returns such Goods to Acuutech’s place of business at the Customer’s cost.

12.6 Acuutech shall not have any liability for defective Goods if:

(a) the Customer gives notice in writing within 1 week of delivery that the Goods are defective; and

(b) Acuutech is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by Acuutech) returns such Goods to Acuutech’s place of business at the Customer’s cost.

12.7 Subject to clause 12.1 above, Acuutech shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for loss of profits; loss of business; or depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

12.8 Subject to clause 12.1 above, Acuutech’s total aggregate liability arising out of or in connection with the performance or contemplated performance of the Services and this Contract, and whether in contract, tort (including negligence or breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, shall not exceed the total charges paid to Acuutech in the 6 months preceding the claim.

13. Termination

13.1 Without prejudice to any other rights or remedies herein, Acuutech may terminate this Contract and any Services, whether provided to the Customer or any End User, without liability, if the End User acts in any way which hinders or obstructs Acuutech’s ability to provide the Services, or if the Customer:

(a) fails to pay any invoice on time;

(b) commits an intentional and material breach of any term of this Contract;

(c) act in a manner suggesting that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;

(d) suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due.

13.2 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.

13.3 Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

14. Waiver

14.1 No failure or delay by a party to exercise any right or remedy provided under this 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.

15. Rights and remedies

15.1 Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

16. Severance

16.1 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.

16.2 If any provision or part-provision of this Contract is deemed deleted, the parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.

17. Entire agreement and Variation

17.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

17.2 Each party acknowledges that, in entering into this Contract, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.

17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

17.4 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Acuutech unless in writing and signed by a director of Acuutech.

18. Assignment

18.1 The Customer shall not, without the prior written consent of Acuutech, assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

18.2 Acuutech may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

19. No partnership or agency

19.1 Unless stated otherwise, nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

20. Third party rights

20.1 Unless specifically stated otherwise, this Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

21. Notices

21.1 Save for the service of any proceedings or other documents in any legal action, any notice or other communication given to a party under or in connection with this Contract shall be in writing and shall be sent by email to an agreed email address and deemed delivered the next working day after being sent.

22. Governing law

22.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation or the Services (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.

23. Jurisdiction

23.1 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 this Contract or its subject matter or formation (including non-contractual disputes or claims).