1 DEFINITIONS
In these Terms:
“Contract” means the agreement made between Us and You which incorporates the Inventory, the Procedure and these Terms;
“Inventory” means the list of Your computer hardware and software produced by Us from time to time and delivered to You, based on information supplied by You;
“Licensed Software” means software licensed by Us to You;
“Procedure” means the procedure for requesting engagement of Us to support You within the bounds of the product or service You have purchased;
“Services” means the product(s) or service(s) supplied by Us to You, which may include but is not limited to the following:
- Remote Managed IT;
- Managed Online Backups;
- Web Design and Hosting;
- Software and application support;
- Firewall support and set up;
- Provision of virtual private networks;
- Consultancy;
- Hardware and software upgrades, and/or
- System design and architecture;
“Support Call” means a call or e-mail made by You to Us in accordance with the Procedure requesting support included within the Services;
“Terms” means the terms and conditions set out in this document;
"Third Party Software" means software owned by or licensed to You by a third party (whether or not supplied by us) which is included in the Inventory;
"Us" or "We" means Pixiefix Limited (company number 4826195) and Our or Ours has a corresponding meaning; and
"You" or “Your” means the person or company to whom Services are supplied.
2 THE CONTRACT BETWEEN YOU AND US
2.1 These Terms apply to all Contracts for the supply of Services by Us to You. By purchasing Services from Us, You agree that these Terms apply to the Contract and that no other terms, conditions, warranties or representations apply to it.
2.2 We act as Your independent contractor. There is no partnership or agency relationship between Us and You and neither You nor We have any authority to make any contract or enter into any obligation on behalf of the other unless the ability to do so is set out in these Terms.
3 THE SERVICES
3.1 After the initial purchase of Our Services, You may upgrade to a higher level of Services at any time but You may only downgrade to a lower level of Services, 6 months after the anniversary of the start of the Contract or at any time following the date 12 months after the start of the Contract. You are required to give Us 1 months written notice when downgrading your Service.
3.2 The Services are provided by Us in respect of the hardware and software set out on the Inventory, but not any other hardware or software which you may have. Attempting to raise a Support Call on hardware or software that is not set out in the Inventory means that You either do not wish Us to support it or that you are in breach of your responsibilities as laid out in Your Contract section 5.
3.3 We have entered into the Contract and will provide the Services (and our charges that have been calculated) on the basis that the Services will be provided to You by Us remotely without us having to attend your premises. Where this is not the case We will write to You and ask You to agree this specifically with Us. In this event, We reserve the right to make additional charges to cover our time and expenses in attending your premises.
3.4 Unless We agree otherwise with You, Our set-up costs in respect of the Services are included within our charges for them as advertised, and agreed by You before entering into the Contract, or acceptance is deemed given after the Contract has begun. We would only seek to make an extra charge for Our set-up costs where Your systems are very outdated or incorporate non-standard hardware or software, and the additional set-up costs (which might, for example, include essential hardware or software maintenance or replacement) would be kept to a minimum and will be agreed before the Contract begins. We will not make any extra charge in respect of hardware configuration.
3.5 Where We agree with You to spend extra time, in excess of Your purchased Services, whilst providing services of any sort to You (including Services), we will make an additional charge in respect of this extra time. Wherever possible, we will agree the charges for that extra time before incurring it.
3.6 Where a Support Call is made by You in accordance with the Procedure We will respond to You in respect of that Support Call within the response times of the Services.
3.7 Where We agree with You to do so, we may provide hardware upgrades to you as part of the Services. The cost of these and our charges in providing them are not included in the price of the Services and will be agreed with you prior to the provision of the upgrade.
3.8 We may act proactively to provide system maintenance as part of the Services. Where this is necessary Our time so incurred will fall within the definition of a ‘call’ as referred to below.
3.9 A ‘call’ as referred to within Services, means a Support Call , or half an hour of Our personnel’s time.
3.10 In the event that You need to contact Us in respect of problems with data backup, We will not regard this as a Support Call.
3.11 To the extent that Support Calls (or the equivalent time) are not used in the month in which they arise, they may be carried over for use in the following month, but not further.
3.12 A “break fix call” is defined as a Support Call raised in response to Third Party Software not working to their designed and published specifications. This definition is extended to include third party hardware.
3.13 Unlimited break fix calls are subject to a maximum of two open calls at anytime. If multiple devices are having the same problem only one call is required to cover them all. Support Calls can still be raised but will be put in a queue and will not be addressed until an existing call is closed.
3.14 Only one employee from PixieFix Limited will work on Your systems at any one time unless We decide otherwise.
4 OUR RESPONSIBILITIES
We agree with You that We will:
4.1 keep to the response times as set out in the documentation sent to You within the welcome pack for Support Calls made in accordance with the Procedure. Our commitment is to respond within those times and to try to fix the problem as soon as we reasonably can. To help us to do this We may contact the licensors of Third Party Software and/or Licensed Software and ultimately give You options as to a way forward. Some of those options may involve additional costs to You;
4.2 provide you with the Inventory at the start of the Contract and update the Inventory when requested by You;
4.3 provide You with the Procedure in an easy to follow format at the start of the Contract, whenever You request it or whenever it is revised by Us;
4.4 unless We agree otherwise with You, do the work necessary to set up the provision of the Services (including hardware configuration where necessary) at no extra charge; and
4.5 in providing the Services, use our reasonable skill and care and ensure that the Services correspond with those agreed unless we are unable to so because You have not complied with your obligations under the Contract.
5 YOUR RESPONSIBILITIES
You agree with Us that You will:
5.1 pay our charges as required by the Contract and Services purchased;
5.2 provide accurate information to Us to enable Us to write and update the Inventory and notify us promptly if you are aware that the Inventory is incorrect in any material respect. Failure to notify Us of changes to Your Inventory could result in Us being unable to provide support for those unlisted items;
5.3 follow the Procedure when making Support Calls;
5.4 not knowingly obstruct us from providing the Services and observe and deal with all reasonable requests We make to You to enable us to provide the Services;
5.5 authorise Us to provide the Services, including doing everything necessary as part of the initial set-up (which might include configuring hardware and liaising with third parties on your behalf);
5.6 not (during a Contract or within 12 months of termination of a Contract) employ or enter into any service contract with nor encourage to leave our employment or consultancy any of Our employees, consultants or other personnel;
5.7 ensure that you are properly licensed in respect of all Third Party Software;
5.8 comply with the terms applying to Licensed Software whenever so requested by Us;
5.9 not modify or alter any software or hardware included on the Inventory without notifying Us; and
5.10 wherever practical, observe and implement any advice provided by Us in connection with the Services.
6 DURATION OF THE CONTRACT
6.1 The Contract will, subject to clause 6.2, last for an initial period of 12 months starting on the date on which You signed the Specification and will continue after the initial 12 month period unless and until terminated by at least 1 month’s notice in writing given by You to Us or by Us to You.
6.2 We may terminate the Contract immediately if:
(a) You do not pay any sums due under the Contract on the due date, or
(b) You are unable to pay your debts as they fall due or become the subject of any formal insolvency procedure (for example, receivership, liquidation, administration, voluntary arrangements or bankruptcy).
6.3 Any damages resulting in breach of the Contract which occurs before the end of the Contract will not be affected by termination of the Contract.
7 OUR CHARGES
7.1 Our charges during the first twelve months of the Contract will be deemed agreed by You by entering into a Contract with Us. These charges will have been advertised or made available to You before the Contract starts.
7.2 After the initial period of 12 months, We may make changes to our charges which will become effective 3 months after we give notice of those charges to You.
7.3 If We request you to do so (and this is our usual practice) you agree to make payment of our charges by monthly standing order or direct debit. If you do not use either of these systems, Our invoices are due for payment within 30 days of the date of each invoice.
7.4 You are not entitled to set off against any of our charges for the Services any money owed by Us to You.
7.5 If You are late in paying any of Our charges then We are entitled to sue You for all outstanding sums due to Us from You and/or to charge You interest (both before and after any judgement) at the rate equivalent to that set for the purposes of section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 calculated on a daily basis from the date of invoice until payment.
7.6 Until We receive full payment in respect of any overdue charges for Services We may refuse to provide further Services until all outstanding sums due to Us are paid.
7.7 The remedies available to Us under these Terms are additional to our general rights under the law.
7.8 Where We are required to charge VAT, our charges unless otherwise specified are exclusive of VAT, which will be charged in addition.
8 LIMITS ON OUR LIABILITY
8.1 Our commitment to You is to respond within the response times, as advertised for any Services, for Support Calls made in accordance with the Procedure. This does not mean that we are able to fix a given problem within a given time.
8.2 In the event that We fail to keep to a response time, the call or e-mail which elicited the late response will be re-credited to Your account. The fact that a response is late does not automatically entitle You to claim damages from Us. This forms the basis for the PixieFix Guarantee.
8.3 Our personnel are not authorised to make representations concerning the Services to You unless this is confirmed by Us in writing and You acknowledge by sentering into a Contract with Us and that You do not rely on any such representations which are not confirmed by Us in writing. By entering into a Contract with Us, You irrevocably waive any right to claim damages from Us or to rescind the Contract as a result of any misrepresentation whether or not contained in the Contract unless it was made fraudulently.
8.4 We are not responsible, nor liable for problems which arise out of Your network availability or the services provided by your internet service provider. Unless You have a working broadband connection, We cannot provide the Services except by giving telephone support to You.
8.5 We are not obliged to provide insurance cover against hardware or software failure.
8.6 We are not liable in respect of defects in Third Party Software or Licensed Software.
8.7 We are not liable for any indirect, special or consequential loss or damage suffered by You nor in respect of any loss of profit, or wasted overheads or similar costs suffered by You.
8.8 Save in respect of death or personal injury, in no event shall Our liability in respect of the Contract or the provision of the Services exceed the sum of £1,000,000.
9 LICENSED SOFTWARE
9.1 We may, from time to time, by way of providing the Services licence You to use Licensed Software. There is no additional charge to You in respect of this unless this is agreed between You and Us in writing. Where such a licence is granted, it may be terminated immediately by Us without notice at any time.
9.2 It is Your responsibility to comply with any terms and conditions of the licences attaching to Third Party Software and You indemnify us in respect of any costs, charges or expenses incurred by Us as a result of your breach of this clause 9.2.
10 GENERAL LEGAL PROVISIONS
10.1 If We fail or delay to enforce or exercise any provision of the Contract, this does not constitute a waiver of it and does not affect Our right to enforce or exercise it later.
10.2 The Contract is personal to You and You may not assign or transfer it without Our written consent.
10.3 Any notice or communication under the Contract required to be served on or given to either You or Us should be either delivered by hand, sent by first class post to the other party at its operating address(es) or to another address previously notified to the sending party, faxed to any fax number previously notified to the sending party, or sent by e-mail to such domain or e-mail address as it has previously notified to the sending party and should be deemed to have been given when actually received or, if sent by first class post, two full days after posting or, if sent by fax, upon receipt of the relevant fax confirmation sheet or, if sent by e-mail, upon receipt of a reply, acknowledgement or read receipt.
10.4 No variation to the Contract shall be effective unless it is made in writing and signed for and on behalf of both You and Us.
10.5 If any of these Terms is invalid or unenforceable, it shall not in any way affect the remaining provisions of these Terms.
10.6 Neither You nor We shall be liable for any failure or delay which may take place due to circumstances beyond that party’s reasonable control.
10.7 The Contract contains all the terms agreed by You and Us relating to the subject of the Contract and supersedes any prior agreements, understandings or arrangements between You and Us, whether oral or in writing.
10.8 The construction, validity and performance of the Contract is governed by the laws of England and both You and We accept the jurisdiction of the English courts. |