1 DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions the following terms shall have the following meanings:
“Applicable Laws” means the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000 and any and all laws, statutes, statutory instruments, directives, regulations, orders and other instruments having the force of law and any applicable codes of conduct, guidance, directions and/or determinations relating to the collection, control, processing and/or use of Data, in each case as may be amended, enacted, extended, replaced, modified, consolidated or repealed from time to time;
“Approved Installer” means those of the Customer’s personnel and any third parties who have had prior written approval from Involve to install the Involve equipment and apparatus.
“Charges” means all charges arising from the installation, delivery and termination of the service including: Equipment Charges, Installation Charges, Training Charges and Service Charges.
“Conditions” means these standard terms and conditions of sale.
“Contract” means these Conditions and the Sales Proposal.
“Customer” means the company or other body corporate or person or persons set out in the Sales Proposal.
“Sales Quotation and/or Sales Proposal” means the Sales Proposal for the sale and purchase of Equipment and Services from Involve accepted by Involve in accordance with these Conditions.
“Data” means data (which may include “personal data” for the purposes of the Data Protection Act 1998) about an individual in respect of whom the Customer uses the Services or that the Customer provides to Involve, or that Involve has access to under or in connection with this Contract;
“Involve” means Involve Visual Collaboration Limited (a company registered in England and Wales with company registration number 02383157) whose registered office is Martin Dawes House, Europa Boulevard, Westbrook, Warrington, WA5 7WH.
“Equipment” means the equipment or apparatus agreed to be supplied by Involve to the Customer as set out in the Sales Proposal or otherwise supplied by Involve to the Customer.
“Information” means any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise relating to the business, affairs, customers, suppliers or methods of one party and disclosed to, or otherwise obtained by the other party in connection with this Contract.
“Initial Term” means the initial term set out in the Contract.
“Installation Charges” means the charges for the Installation Services as set out in the Sales Proposal.
“Installation Services” means the services for the installation of the Equipment and apparatus provided by Involve as set out in the Sales Proposal.
“Intellectual Property” means any and all patents, copyright, trademarks, rights in designs, know-how, ideas, concepts, technology and any other intellectual property rights (in each case whether or not registered and existing in any part of the world) in or arising from the Services, and/or any other literature.
“Services” means all services provided by Involve as agreed to be provided by Involve to the Customer under this Contract to include, but not be limited to; Installation Services, Training Services, Management and Reporting Services and any other services.
“Training Charges” means the charges for the Training Services as set out in the Sales Proposal.
“Training Services” means the training services specified in the Sales Proposal.
”Bill and Hold” means an agreement where the customer is to be invoiced for equipment purchased by Involve prior to delivery to the customer, transfer of ownership will take place on payment of said invoice. Involve agrees that the equipment be segregated from all other similar equipment in Involve’s inventory and is ready for use and available for delivery as per installation schedule or reasonable customer request.
1.2 Headings are included for convenience only and shall not affect the construction or interpretation of this Contract. The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context.
1.3 Working days shall be all days other than Saturdays, Sundays and public holidays in the part of the United Kingdom in which the Services are received and working hours shall be the hours of 09.00 to 17.00 (GMT/BST) on a working day.
1.4 The Sales Proposal has the same force and effect as if set out in the body of this Contract. In the event of conflict between the Sales Proposal, these Conditions and any other written agreement, the following order of precedence shall apply: (i) the other agreement to the extent unambiguously and expressly stated to vary the terms of this Contract; (ii) these Conditions; (iii) the Sales Proposal; and (iv) any other written agreement.
2 FORMATION OF CONTRACT
2.1 Any Sales Proposal sent to Involve by the Customer shall be accepted at the discretion of Involve. If so accepted, the Sales Proposal will only be accepted upon these Conditions and by means of Involve’s standard written acknowledgement of order or pro forma invoice.
2.2 These Conditions shall apply to the Sales Proposal. Any different or additional terms and conditions contained on or referred to in the Sales Proposal and any other documents or correspondence from Customer shall not apply to the Sales Proposal unless they are expressly accepted in writing by Involve.
2.3 The Customer agrees that Involve may (at its discretion, both before, during and after acceptance of any Signed Sales Proposal Acceptance, request such trade references and carry out such credit, bank and any other checks in respect of the Customer as Involve deems necessary or desirable. The Customer shall provide Involve with such trade references and such information and authority to carry out such checks as Involve may reasonably request or deem necessary.
2.4 Upon acceptance of a Customer Order by Involve, Involve will provide the Equipment and the Services with effect from the Commencement Date on the Sales Proposal and subject to the terms of this Contract.
3 RELATIONSHIP BETWEEN THE PARTIES
3.1 The relationship of Involve to the Customer is that of independent contractor and nothing contained in this Contract creates a relationship of employer and employee, principal and agent or partnership between Involve and the Customer.
3.2 Neither party shall pledge the credit of the other or sign any document, enter into any agreement or make any promise on behalf of the other or in any way indicate that it is entitled to do so without the prior written consent of the other party.
4.1 Involve shall supply the Customer with the Equipment and services as defined by the Sales Proposal.
4.2 Unless otherwise stated in the Sales Proposal, the Equipment Charges includes the handling of the Equipment and delivery to the address specified in the Sales Proposal. However, Involve reserves the right to make additional charges to cover any increase in transport costs occurring before the date of delivery and/or any additional cost for arising from a failed delivery including: additional delivery costs, storage costs and costs arising from a failed installation as a result of the failed delivery.
4.3 Any time or date for delivery given by Involve is given in good faith and is provided as an estimate only and shall not be considered binding.
4.4 The Customer shall notify Involve in writing of any difference between the quantity of the Equipment specified in the Sales Proposal and the quantity of the Equipment delivered within 7 days from the date of delivery. In the event of a shortfall between the quantity of equipment delivered and the equipment ordered as detailed in the Sales Proposal, Involve shall (at its option) either deliver additional Equipment to the Customer to make good any shortfall or issue a credit note to the Customer in respect of any shortfall. Failure to notify Involve of any shortfall within 7 days from the date of delivery shall result in the delivery of equipment being deemed complete and as specified in the Sales Proposal
4.5 Involve reserves the right to substitute any Equipment with alternative equipment provided that any substitution will not materially affect the performance of such equipment, delivery of services or result in any increase in the Equipment Charges.
5 RISK AND TITLE
5.1 Involve shall at all times retain non-transferable title and ownership of all Equipment until such time as all monies due in relation to the purchase of the equipment have been received by Involve. Risk in the Equipment shall pass to the Customer on delivery (or, in the event of any failed delivery not resulting from the breach or negligence of Involve, the date of attempted delivery). Subject to clause 5.2 of this document.
5.2 Where equipment is supplied by Involve to the Customer as part of a service or services contract, Involve shall at all times retain non-transferable title and ownership of all Equipment. Risk in the Equipment shall pass to the Customer on delivery (or, in the event of any failed delivery not resulting from the breach or negligence of Involve, the date of attempted delivery). The Customer shall hold the Equipment on a fiduciary basis for Involve as Involve’s bailee.
5.3 The Customer shall at no cost to Involve ensure that all Equipment is only used in accordance with its purpose.
5.4 The Customer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment.
5.5 The Customer shall maintain all Equipment in a satisfactory condition and provide insurance to the full value of the Equipment on behalf of, and at no cost to Involve, against all risks to the reasonable satisfaction of Involve and provide a copy of the policy of insurance and premium receipts to Involve upon request.
5.6 The Customer shall not pledge or charge by way of security for indebtedness any of the Equipment for which title is maintained by Involve.
5.7 The Customer shall be entitled to use the Equipment only in connection with the receipt of the Services detailed in the Sales Proposal.
5.8 The Customer grants to Involve (and shall procure that any relevant third parties shall grant to the Involve an irrevocable licence at any time to enter upon any premises where the Equipment is situated in order to inspect them or, where the Customer’s right to possession has terminated, repossess the Equipment.
5.9 The Customer’s right to possession of the Equipment shall terminate immediately upon termination of contract. Involve is entitled to terminate the Contract in accordance with the terms contained herein or in the event that the Customer encumbers or in any way charges any of the Equipment.
6 INSTALLATION SERVICES
6.1 In the event that Involve agrees to provide Installation Services as detailed in the Sales Proposal:
6.1.1 Involve may inspect, at the Customer’s own cost, any or all of the proposed equipment locations prior to the performance of any Implementation Services;
6.1.2 The Customer shall promptly and at its own expense carry out any proprietary work in respect of the locations as Involve deems necessary or desirable in order for Involve to perform the Implementation of Services;
6.1.3 Involve shall not be obliged to perform any Installation Services in respect of any locations that it reasonably deems are not compatible with the Equipment and/or Services or in respect of which such preparatory work requested by Involve has not been completed in accordance to Involve’s reasonable satisfaction;
6.1.4 Involve shall not be liable for any failure or delay in the performance of the Installation Services resulting from the Customer’s failure or delay in carrying out such proprietary work as may be deemed necessary by Involve ;
6.1.5 Subject (without limitation) to the provisions of clauses 6.1 and 8, Involve shall use reasonable endeavours to perform the Installation Services in respect of Equipment detailed in the Sales Proposal.
6.2 In the event that the Customer has elected to self-install the Equipment:
6.2.1 the Equipment must be installed in the Location(s) by an Approved Installer; or
6.2.2 The Customer shall install the Equipment in the Location(s) in accordance with any specifications and instructions given by Involve from time to time.
7 TRAINING SERVICES
7.1 In the event that the Customer contracts for Involve Training Services:
7.1.1 subject (without limitation) to the provisions of clause 8, Involve shall use reasonable endeavours to perform the Training Services at the premises and for the number of days as set out in the Sales Proposal for all Customer nominated personnel: and
7.1.2 The Training Charges are non-refundable, whether or not the Customer’s personnel attend or successfully complete the training to which the Training Charges relate.
8.1 Dates and Times given for performance of the Services provided by Involve are given in good faith and provided as an estimate only that shall not be binding.
8.2 The Customer shall provide Involve with access to such of its information records, IT systems, facilities, premises, vehicles and staff as may reasonably be required for the purpose of Involve providing the Services.
8.3 The Customer shall use the Equipment and the Services in accordance with this Contract and solely for the purpose for which it was designed.
8.4 The Customer consents to Involve monitoring, intercepting and keeping a record of the Customer’s use of the Service and using such records:
8.4.1 to compile management information in respect of the Services (provided that any such management information preserves anonymity and subject to clause 12) for use by Involve and third parties
8.4.2 to ascertain the Customer’s compliance with this Contract and law;
8.4.3 to establish the existence of facts to ascertain compliance with regulatory or self-regulatory practices or procedures that are applicable or to ascertain or demonstrate the standards which are or ought to be achieved; or
8.4.4 to investigate or detect any authorised use of the Service and to ensure its effective operation.
9 PRICE AND PAYMENT
9.1 Involve shall be entitled to invoice the Customer:
9.1.1 for the Equipment upon delivery to customer site, or on a Bill and Hold basis if equipment is required to remain in Involve warehouse but specifically segregated for the sole purpose of later delivery to the customer.
9.1.2 for the Installation Charges in advance of/following the performance of the Installation Services;
9.1.3 for the Training Charges in advance of/following the performance of the Training Services;
9.1.4 for the Service Charges monthly in advance and
9.1.5 for any other amounts arising from this Contract in arrears and subject to the payment terms as detailed on the invoice.
9.2 The Customer shall pay all invoices in full and without any deduction or set off (whether in relation to such invoice or otherwise) within the timescales specified in the relevant invoice or, if not so specified, within 30 days of the date of Involve’s invoice.
9.3 All sums payable under this Contract are exclusive of VAT and any tax replacing it, which shall be invoiced in addition.
9.4 In the event that full payment is not received by Involve by the due date then without prejudice to its rights Involve may:
9.4.1 sue for the Charges; and/or
9.4.2 charge interest (both before and after any judgment) accruing on a daily basis and compounded monthly at the rate of 2% over the base lending rate from time to time of the Bank of England; and/or
9.4.3 without liability (subject to clause 14) require the immediate return to Involve of all Equipment for which ownership has not passed to the Customer in accordance with the provisions of clause 4 (and the Customer hereby agrees to reimburse to Involve upon demand the Involve costs or expenses in recovering such Equipment); and/or
9.4.4 without liability (subject to clause 14) suspend the provision of all Services to include the disabling of all Equipment and Apparatus. Reconnection of service shall be subject to payment of a reconnection fee and no liability is accepted by Involve for any loss howsoever arising from the suspension of the service.
9.5 In the event that full payment is not received by Involve by the due date by reason of failure of any direct debit payment or other payment method due to insufficient funds or cancellation or for any other reason, then without prejudice to its rights Involve may charge the Customer an additional fee of £25 in respect of additional administrative costs, penalties and expenses pursuant to the collection of payment.
9.6 Involve reserves the right to increase Charges upon providing notice to the Customer at any time prior to delivery or performance in the event that:
9.6.1 The Customer requests any change to delivery dates, quantities or specification of the Equipment or Services as detailed in the Sales Proposal or change of instruction; or
9.6.2 failure or delay caused by the Customer or failure of the Customer to provide Involve adequate information or instruction causing an increase in costs to Involve ; and/or
9.6.3 Fluctuation in foreign exchange rates, alterations in any taxes or duties, variations in the costs of raw materials or components or labour or transport or by reason of any other cause whatsoever (whether or not of the same nature as the foregoing) beyond the control of Involve giving rise to an increase in costs of supply of Equipment and/or Services.
10 INTELLECTUAL PROPERTY
10.1 Rights to all Intellectual Property arising from the provision of services as detailed in the Sales Proposal are retained by Involve or its licensors. The Customer agrees that:
10.1.1 No right to any Intellectual Property except as specified in this Contract is granted or inferred to the Customer;
10.1.2 it shall not directly or indirectly oppose or dispute the validity of (or assist any third party to oppose or dispute the validity of) any Intellectual Property rights;
10.1.3 it will not use any trade mark or trade names or imagery which resemble Involve trademarks or trade names or imagery and or that might intentionally or otherwise confuse or risk misleading any third party; and
10.1.4 it shall not remove, alter or otherwise tamper with any trademarks, trade names, logos, numbers or other means of identification on the Equipment or its packaging or in respect of the Services or any product of the Services without Involve’s prior written consent.
11.1 Information jointly shared between Involve and the Customer shall be treated as confidential throughout the term of this agreement and thereafter until such release as is deemed necessary is granted in writing by the owner of such information.
Furthermore Each party shall:
11.1.1 keep the other’s Information confidential;
11.1.2 shall not divulge the other’s Information to any third party except for the purposes of this agreement (and shall procure that any such third party is aware of and complies with these obligations of confidentiality); and
11.1.3 shall use the other’s Information only for the purposes of this agreement.
11.2 The provisions of this clause 11 shall not apply to any Information that the receiving party can show:
11.2.1 is in the public domain in substantially the same combination as that in which it was disclosed to the receiving party other than as a result of a breach of this agreement or any other obligations of confidentiality;
11.2.2 is or was lawfully received from a third party not under an obligation of confidentiality with respect thereto;
11.2.3 is required to be disclosed under operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required); or
11.2.4 was developed independently of and without reference to confidential information disclosed by the other party.
11.3 During the term of this Contract, Involve may use the Customer’s name as a reference or in any advertising or promotional materials, press release, tender, proposal, speech, article or other similar material without the prior written consent of the Customer. The Customer may, however, withdraw such consent at any time upon reasonable written notice to Involve.
12 DATA PROTECTION
12.1 The Customer warrants and represents to Involve (and it is a condition of this Contract) that:
12.1.1The Customer has all necessary consents (including under all Applicable and Prevailing Laws that are in place within the jurisdiction of operation) to process any and all Data obtained through the use of the Services and to provide it to Involve and its representatives for them to use that Data in the provision of the Services (and the Customer shall provide proof of such consent to Involve and its representatives upon request); and
12.1.2The Customer shall control, process and use any and all Data in accordance with all Applicable and Prevailing Laws that are in place within the jurisdiction of operation.
13.1 The Customer warrants and represents to Involve (and it is a condition of this Contract) that it has full capacity and authority and all necessary consents to enter into and to perform its obligations under this Contract.
13.2 Involve warrants that the Equipment will correspond with all specifications set out in the Sales Proposal and will be free from defects in material and workmanship for a period of 30 days from the date of delivery provided that:
13.2.1 Involve shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage or negligence by the Customer or persons using the Equipment, abnormal working conditions, any breach of clause 6.2 or clause 8.3, or misuse or alteration or repair of the Equipment without Involve written approval;
13.2.2 any such defect or failure to meet any such specification by the Equipment shall be notified to the Involve in writing as soon as reasonably possible after the Customer discovers such defect or non-conformity; and
13.2.3 the above warranty does not extend to parts, materials or equipment not manufactured by the Involve, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Involve .
13.3 In the event that the Customer notifies Involve of any breach of the limited warranty as detailed in clause 13.1 and within 30 days from the date of delivery, Involve will at its sole discretion, and as the Customer’s only remedy for any loss or damage arising from such breach, either:
13.3.1 repair or replace the Equipment (or the part in question) free of charge;
13.3.2 refund to the Customer a pro rata proportion of the price paid by the Customer for the Equipment and related Installation Services and Services in question; or
13.3.3 issue a credit note to the Customer for a pro rata proportion of the price paid by the Customer for the Equipment and related Installation Services and Services in question.
13.4 In the event that the Customer fails to notify Involve of any breach of the limited warranty at clause 13.1, within 30 days from the date of delivery, the Equipment shall be deemed to comply with any specifications set out in the Sales Proposal and be free from defects in material and workmanship.
13.5 Involve warrants that all Services will be performed with reasonable skill and care.
13.6 There are no warranties, conditions, guarantees or representations as to quality, fitness for a particular purpose or noninfringement of the Equipment and/or the Services or other warranties, conditions, guarantees or representations whether express or implied, oral or in writing, given by Involve except as expressly stated in this Contract. Time of performance of Involve’s obligations shall not be deemed material for the purposes of this agreement.
14.1 Involve’s total aggregate liability in respect of all causes of action arising out of or in connection with this Contract (whether for breach of contract, strict liability, tort (including negligence), misrepresentation or otherwise) and subject to clause; 14.2, 14.3 and 14.4 of this contract, shall not exceed the greater of the aggregate of the Charges paid by the Customer under this Contract or £5,000.
14.2 Involve shall not be liable for any failure or delay in the performance of any of its obligations under this Contract due to:
14.2.1 any failure of telecommunications service or 3rd party equipment;
14.2.2 any fire, explosion, flood, lightning, Act of God, act of terrorism, war, rebellion, riot, sabotage or official strike or similar labour disputes, force majeure; or
14.2.3 any events or circumstances outside the reasonable control of Involve’s, furthermore, Involve shall under such circumstances be allowed a reasonable extension of time for the performance of its obligations.
14.3 Involve shall not be liable, subject to Clause 14.4 of this contract, for any claim to the extent that the claim relates to loss of profits, goodwill, anticipated savings, business opportunity, data or use of data, injury to reputation, third party losses or indirect, consequential or special loss or damage regardless of the form of action, whether in contract, strict liability or tort
(including negligence) and regardless of whether Involve knew or had reason to know of the possibility of the loss, injury or damage in question.
14.4 This Contract shall not limit or exclude Involve’s liability for:
14.4.1 death or personal injury resulting from negligence;
14.4.2 fraud or fraudulent misrepresentation;
14.4.3 damage suffered by the Customer as a result of any breach by Involve of the conditions as to title and quiet enjoyment implied by English law; or
14.4.4 any other liability the exclusion or limitation of which is not permitted by English law.
14.5 The Customer shall indemnify Involve in respect of damage, injury, or loss occurring to any person or property and against all actions, suits, claims, charges or expenses in connection therewith arising from the condition or use of the Equipment and/or the Services in the event and to the extent that the damage, injury, loss shall have been occasioned partly or wholly by the negligence of the Customer or its servants or agents or by any breach by the Customer of its obligations to Involve hereunder.
15.1 This Contract shall come into effect on the Commencement Date as stated in the Sales Quotation unless otherwise notified in writing by Involve and shall continue for the Initial Term and thereafter unless and until terminated in accordance with this Contract.
15.2 Either party may terminate this agreement upon 90 days written notice to the other, such notice expiring no sooner than the expiry of the Initial Period.
15.3 Either party may terminate this Contract at any time immediately upon written notice to the other in the event that:
15.3.1 the other party commits a material breach of this Contract and, where the breach is capable of remedy, has failed to remedy such breach within 30 days of written notice requiring remediation; or
15.3.2 the other party makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts (within the meaning of section 123 of The Insolvency Act 1986) for a continuous period of more than 30 days or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or otherwise.
15.4 In the event that Involve is entitled to terminate this Contract, then without prejudice to its right to terminate this Contract Involve may elect to suspend this Contract.
15.5 Upon the termination of this Contract, each party’s rights, liabilities and obligations under this Contract shall cease and each party’s accrued rights, liabilities and obligations and the rights, liabilities and obligations of each party that are expressly or by implication intended to come into force upon or, remain in force following, the termination of this agreement (including those terms stipulated under clauses 1, 5, 10, 11, 12, 14, 15 and 16) shall survive any termination of this Contract.
15.6 On termination of this Contract for any reason
15.6.1 all amounts due to Involve under the Contract shall become immediately due and payable;
15.6.2 at its own cost each party shall promptly destroy or return all of the other’s Information and personal data that is in its possession or control;
16.1 The Customer may not assign, transfer, mortgage, charge, sub-contract, sub-licence or otherwise dispose of the whole or any part of this Contract without Involve’s prior written consent. Involve may assign, transfer, mortgage, charge, subcontract, sub-licence or otherwise dispose of the whole or any part of this Contract (including any or all of its rights under clause 9) without the Customer’s prior consent.
16.2 In the event of any terms and conditions of this Contract being determined to be invalid, unlawful or unenforceable to any extent, such terms or conditions shall be severed from this Contract and the remainder of this Contract shall continue to be valid and enforceable to the fullest extent permitted by law.
16.3 The remedies available to the parties under this Contract shall not limit or exclude any other rights that either party may have against the other.
16.4 The failure or delay of either party to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to this Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect either party’s right later to enforce or exercise it, nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
16.5 This Contract contains all the terms agreed by the parties relating to its subject matter and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to this Contract except as set out in this Contract. Each party acknowledges and accepts that, in entering into this Contract, it has not relied upon any representation, undertaking or promise except as set out herein.
16.6 Save as expressly provided in this Contract, no variation of or amendment to this Contract shall be effective unless made in writing and signed by authorised representatives of both parties.
16.7 Except in relation to any third party to whom Involve may assign, transfer, mortgage, charge, sub-contract, sub-licence or otherwise dispose of the whole or any part of this Contract under clause 16.1. Nothing in this agreement shall confer any right or benefit upon any person who is not a party to it whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16.8 Each Contract between Involve and the Customer shall be given and construed in accordance with English law. The Customer submits to the jurisdiction of the English courts, however, Involve may enforce any judgement in any court of competent jurisdiction.