It is agreed that the following terms and conditions together with the Proposal set out the entire and only agreement (“the Agreement”) made between you (“the Customer”) and The EPOS Bureau Limited whose address is Tullynagarn, Lisnarick Road, Irvinestown, BT94 1EY (‘the Company”) and no variation or modification of this Agreement shall be effective unless it is agreed by both parties in writing.
The headings contained in this document are for convenience only and shall not affect the construction of this Agreement. References to the provision of any statute or legislation shall be construed as a reference to such statute or legislation as from time to time amended, consolidated or re-enacted (without substantial amendment).
Definitions:
“Additional Subscription Modules” means the list of additional modules set out in the Proposal which may be selected by the Customer during the Term and added to their Subscription;
“Confidential Information” means any information and/or data disclosed by one party to the other that is designated as "confidential" or which by its nature is clearly confidential or any information of a confidential or proprietary nature irrespective of the form of presentation or communication including, but not limited to, computer software and data, physical objects and samples) relating to the business, operations, customers, processes, budgets, pricing policies, product information, know-how or strategy of the disclosing party;
“Completion” means when the Deliverables have been delivered by the Company;
“Core Modules” means the core modules included within the Customer’s Subscription, the details of which are set out in the Proposal under the heading ‘Core Package’ as same may be amended or updated by the Company from time to time;
“Customer” means your business and includes the officers, employees and agents of your business;
“Deliverables” means the Products, Services and associated Material specified as Deliverables in the Proposal;
“Intellectual Property Rights” means all intellectual property rights including but not limited to all patents, trademarks, rights in designs, copyrights, business or domain names, database rights and design rights (whether registered or not) and all applications for any of the foregoing and any other intellectual property rights which may exist at any time in any part of the world in respect of the Software and the Product or any part thereof and which are legally and beneficially owned by the Company;
“Material” means the subject matter of any category of Intellectual Property Rights;
“Products” means the hardware and software to be provided by the Company as detailed in the Proposal;
“Proposal” means either a document prepared and provided by the Company or a document prepared and provided by the Reseller which sets out the nature of the Products, Services and associated Material to be provided by the Company to the Customer;
“Reseller” means a reseller who has been authorised by the Company to market and sell the Products and Services to the Customer;
“Services” means installation, set up and configuration services together with any ongoing support services as detailed in the Proposal;
“Software” means the Core Modules together with any Additional Subscription Modules selected by the Customer;
“Subscription” means the Customer’s subscription for Services as detailed in the Proposal;
“Subscription Fee” means the monthly fee payable by the Customer to the Company for the use of the Software and the receipt of Services as outlined in the Proposal; and
“Term” means a period of thirty-six (36) months from the date of Completion.
1. Length of Agreement
1.1 The parties agree that this Agreement shall remain in force for the Term unless terminated by either the Customer or the Company in accordance with clause 24 of this Agreement.
1.2 Upon expiry of the Term, the Company shall review its arrangements with the Customer and, if the Customer wishes to continue to receive the Services, a new written agreement for a further term of thirty-six (36) months shall be entered into on terms and conditions to be agreed between the parties.
2. Proposal
2.1 Where a Proposal is provided to the Customer, it may include the following information:
a. A detailed description of the Services.
b. A list of assumptions and pre-requisites.
c. A list of items that are explicitly outside the scope of the Services to assist the Company and the Customer in defining the Deliverables.
d. Notwithstanding this, an item that is not explicitly stated to be outside the Proposal will not be implied to be included within the Proposal unless specifically addressed in the Deliverables.
e. A detailed description of the Deliverables.
f. The up-front cost and ongoing Subscription Fee in relation to the Deliverables (exclusive of VAT).
g. A list of important additional notices that cover key considerations, including but not limited to retention of title, cabling and power requirements and pre-requisites for configuration of the Customer’s I.T. network.
h. A list of Additional Subscription Modules.
2.2 It is the responsibility of the Customer to review the Proposal to ensure that it meets their requirements. Following the commencement of works by the Company, any amendments to the Services will fall outside the Proposal and a separate fee may be raised by the Company.
3. Pricing
3.1 Pricing information will be provided to the Customer in the Proposal.
3.2 The Customer agrees to pay the Company:
a. The up-front total cost as detailed in the Proposal (exclusive of VAT at a current rate of 20%) in respect of the hardware and installation costs upon signature of the Proposal;
b. All reasonable freight and delivery charges; and
c. The Subscription Fee as detailed in the Proposal (exclusive of VAT at a current rate of 20%) on a monthly basis by way of Direct Debit.
3.3 Where the Customer fails to make payment of the monthly Subscription Fee, and in addition to any other rights or remedies it may have, the Company will contact the Customer to advise that they have seven (7) days to make such payment otherwise the provision of Services will be terminated and the Customer’s right to use the Software shall cease immediately without further notice.
3.4 In accordance with the Late Payment of Commercial Debts (Interest) Act 1998, the Company reserves the right to charge interest on any payments outstanding on foot of this Agreement at an annual percentage rate of 8% over the Bank of England’s Base Rate calculated on a daily basis for each day that the fees are outstanding.
4. Changes to the Services
4.1 The Customer may add Additional Subscription Modules to its Subscription at any point during the Term. Any Additional Subscription Modules selected by the Customer will be added to the Customer’s Subscription at the pricelist rates applicable at the time of the Customer’s request. There will be no variation to the terms and conditions of this Agreement save for an increase in the monthly Subscription Fee which shall be chargeable from the date of the Additional Subscription Modules going live.
4.2 The Customer may remove one module from their Additional Subscription Modules during any twelve-month period of the Term. There will be no variation to the terms and conditions of this Agreement save for a decrease in the monthly Subscription Fee on a pro-rata basis which shall be chargeable from the date of removal of the Additional Subscription Module. For the avoidance of doubt, a Customer may only remove a module from the Additional Subscription Modules and not modules from the Core Package.
4.3 Any amendment to the Services may only be made through agreement in writing by both parties.
5. Alterations
5.1 The Company reserves the right, in its sole discretion and without incurring any liability to the Customer, to update, improve, replace, modify or alter the Software, the Products and Services to be provided under this Agreement, in order to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Deliverables, from time to time throughout the Term.
5.2 The Company shall update the Software, where relevant, at least once during the Term.
6. Time Estimates
6.1 The Proposal may include time estimates pertaining to the install date if proposed by the Customer which relates to the time required to provide the Deliverables to the Customer.
6.2 The Company will use all reasonable endeavours to comply with the Customer’s time estimates but time estimates will not in any circumstances be binding upon the Company.
6.3 Any fluctuation in the time required to provide the Deliverables will not in and of itself affect the applicable fees under Clause 3.
7. Delivery
7.1 Delivery is deemed to take place when the Products are delivered to the Customer’s address, whereupon the risk of loss, breakage and all damage and all other risks shall pass to the Customer.
7.2 The Company shall not be liable for loss or damage to Products in transit unless the loss or damage occurs prior to arrival at the Customer’s address and damage is reported to the Company within three days of arrival.
7.3 Legal and beneficial title in the Products shall not pass to the Customer until payment is received in full by the Company of all sums owed to it on any account by the Customer, whether arising out of this or any other contract.
8. Customer’s Obligations
8.1 Customer Acceptance
8.1.1 Where the Customer is concerned that the Services provided by the Company do not satisfy all of the Deliverables, the Customer agrees to notify the Company immediately.
8.1.2 Where the Customer has not notified the Company of any concerns under clause 8.1.1 within five (5) business days of Completion the Customer will be deemed to have accepted the Deliverables.
8.1.3 It is the responsibility of the Customer to ensure that the Deliverables are inspected upon receipt by an authorised member of staff.
8.2 Liaison and Access to the Customer’s Site
8.2.1 The Customer agrees, at its own expense, to provide the Company with:
a. a suitable representative to liaise with the Company. The Company reserves the right to request an alternative representative at any stage.
b. reasonable access to the Customer’s site, computer systems, equipment and Materials necessary for the Company to fulfil its obligations; and
c. such assistance as may be specified in the Proposal.
8.2.2 The Customer agrees that the Company may publicise the fact that the Customer is a client of the Company.
8.3 Use of the Deliverables
8.3.1 The Customer warrants that it has acknowledged and accepted our recommendation to procure and install Uninterrupted Power Supply Units in line with the power requirements of the respective equipment and in line with any other requirements of the Company pertaining to IT infrastructure, networks, power and internet provision required for normal function.
8.3.2 The Customer shall only engage a verified and qualified installer in respect of any and all elements that the Deliverables depend upon for normal and proper function, including but not limited to, IT Infrastructure, networks, power and internet provision.
8.3.3 The Company shall not be liable to the Customer for the failure of the system where this failure is as a result of the failure of the Customer to comply with this clause 8.3.
8.4 Use of Third-Party Software
8.4.1 The Customer covenants with the Company that it will not allow any changes or modifications to the Software to be made by any party other than the Company.
8.4.2 The Company will not be liable for any loss or damage caused by third-party providers.
8.4.3 For the avoidance of doubt, where the Customer requires integration with either SAGE or Xero as part of the Services to be provided by the Company, the Customer must purchase software packages directly from either SAGE or Xero as the case may be in order to facilitate such integration.
9. Force Majeure
9.1 The Company shall not be liable to the Customer for any loss, damage or costs incurred due to a delay or failure, in whole or in part, to fulfil its obligations under an order where such delay or failure arises as a result of an event or circumstances beyond its control, which may include (but are not limited to) Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, terrorism, insurrection, civil disturbance or requisition, strikes, lockouts or other industrial action or trade union dispute, power failure or breakdown in machinery or any other event outside the Company’s reasonable control.
10. Confidentiality
10.1 Neither party will disclose to any third party, nor use for any purpose except as expressly permitted by this Agreement, any Confidential Information belonging to the other party.
10.2 Neither party will be in breach of any obligation to keep any Confidential Information of the other party confidential or not to disclose it to any third party to the extent that it:
a. was rightfully in the receiving party’s possession prior to disclosure to it by the other party;
b. is already public knowledge or which becomes so at a future date (otherwise than as a result of a breach of this Clause 10);
c. is received from a third party who, to the knowledge of the receiving party, is not under an obligation of confidentiality in relation to the information;
d. is developed independently without access to, or use or knowledge of, the confidential information, or
e. is required to be disclosed by operation of law, or court order.
11. Intellectual Property
11.1 All Intellectual Property Rights in the Material produced by the Company in providing the Deliverables vests in the Company.
11.2 Except as expressly permitted by a licence granted by the company, the Company’s Material may not be:
a. reproduced or transmitted in any form, or by any means, electronically or mechanically;
b. lent, resold, hired out or otherwise circulated.
12. Independence
12.1 It is the intention of the parties that this Agreement is for the provision of services and:
a. neither this Agreement nor the provision of the Services shall create a partnership or joint venture between the parties and neither party shall enter into or have authority to enter into any engagement or make any representations or warranties on the other party's behalf, nor seek to otherwise bind or oblige the other party in any way; and
b. neither this Agreement nor the provision of the Services is intended to create or imply any employment relationship between the parties.
13. Notices
13.1 Any notice required by this Agreement to be given by either party shall be in writing and shall be served by sending the same by registered post or recorded delivery to the address of the other party.
14. Severability
14.1 If any provision of these terms and conditions is held to be invalid or unenforceable, this will not affect the validity or enforceability of the remaining provisions of these terms and conditions.
15. Waiver
15.1 No waiver by the Company of any provision of these terms and conditions shall be binding unless it is expressly confirmed in writing by an authorized representative of the Company.
16. Extent of Warranty for Products
16.1 In relation to all Deliverables supplied to the Customer by the Company, the Customer will enjoy the benefit of the relevant manufacturer’s warranty and must follow the warranty procedure set out by the relevant manufacturer.
17. Insurance
17.1 The Products are entirely at the risk of the Customer from the moment the Products are delivered in accordance with Clause 7.1.
17.2 The Customer must, at its own expense, maintain the Products and insure them for their full reinstatement value for the benefit of the Company against theft, breakdown, fire, water and other risks from the moment of delivery to the Customer and until title in the Products has passed to the Customer.
18. Limitation of Liability
18.1 The Company shall be responsible for the upkeep and maintenance of the Software. For the avoidance of doubt, the Company shall not under any circumstances be responsible for any issues or defects that may arise other than where the Company’s troubleshooting process reveals that such issues or defects are the results of a problem with the Company’s Software.
18.2 Nothing in this Agreement will limit or exclude the Company’s or the Customer’s liability for death or personal injury.
18.3 Save and except for clause 18.2, the Company’s liability under this Agreement shall not, in any event, exceed the total of the Subscription Fees paid by the Customer during the Term.
18.4 The Company will not be liable to the Customer in respect of any losses arising out of events beyond our reasonable control.
18.5 The Company accepts no liability for any of the following:
18.5.1 any business losses, such as loss of profits, income, revenue, anticipated savings, business, contracts, goodwill or commercial opportunities;
18.5.2 loss or corruption of any data, database or software;
18.5.3 any special, indirect or consequential loss or damage.
18.6 This clause shall survive the termination of this agreement for whatever reason.
19. Assignment
19.1 Neither party will assign or transfer this Agreement or any of its rights or obligations herein, whether in whole or in part without the prior written consent of the other.
20. Complaints
20.1 The Company is committed to providing a quality service to the Customer. However, if the Customer is dissatisfied with any aspect of the Company’s service, any complaints should be raised in writing to the Company’s registered office address within 28 days of receiving any Services.
21. Compliance with the General Data Protection Regulation
21.1 The Company respects your privacy and is committed to protecting your personal data and keeping it safe. We aim to be clear about how we collect, process and look after your personal data. We only collect the information that we need or that you agree we can collect, and will never sell your data or share it with a third party without your express authorisation, or if it is required by law.
21.2 Full details can be found in our Privacy Notice which is available on our website and should be read in conjunction with this document.
22. Third Party Rights
22.1 A person who is not a party to this Agreement will not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
23. Governing Law
23.1 This Agreement shall be governed by and construed in accordance with the laws of Northern Ireland. The courts of Northern Ireland shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning this Agreement and any matter arising from it.
24. Termination
24.1 The Company may terminate this Agreement at any stage during the Term if:
a. The Customer is in breach of any of its obligations contained in this Agreement;
b. The Customer has entered into liquidation whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets;
c. The Customer has become bankrupt; or
d. The Customer ceases or threatens to cease to carry on business.
24.2 Such termination shall be without prejudice to any rights or claims that the Company may have against you.
24.3 The Customer may terminate this Agreement at any stage during the Term. In this event, the Customer shall be liable to pay to the Company the Subscription Fee due for the remainder of the Term together with any reasonable costs incurred by the Company as a result of the Customer’s early termination.
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