Envisage Technical Consultancy - Terms and Conditions
1. DEFINITIONS
2. ORDERS
3. PRICES AND PAYMENT
4. DELIVERY, TITLE AND RISK
5. RETURNS AND WARRANTIES
6. OUR LIABILITY
7. FORCE MAJEURE
8. ERRORS & OMISSIONS
9. DATA PROTECTION
10 Support Contract and Maintenence
11 Service & Support
12 Service, Support & Preventative Maintenance
13 Excluded work / Exclusions
14. Replacement parts
15. Guarantees
16. Pre Contract Audit
17. Data security
18. Charges and payments
19. Other services
20. Access and co‐operation
21. Obligations
22. Limitation of liability
23. Confidentiality
24. Termination of Support Contract
25. Assignment
26. Entire agreement
27. Notices
28. Sole appointment
29. Law
1. DEFINITIONS
‘ETC’ means Envisage Technical Consultancy Ltd
‘Business Customer’ means a legal entity (otherwise referred to as ‘you’) who enters into a Contract with us to buy Goods or Services other than for private use.
‘Contract’ means any contract between you and us for the sale and purchase of Goods or Services, incorporating these Terms.
‘Goods’ means any goods agreed in the Contract to be supplied to you by us (including any part or parts of them).
‘Normal Working Hours’ means 9am to 5pm on a Working Day.
‘Order’ means an order for Goods or Services made by you in accordance with these Terms.
‘Order Confirmation’ means our written acceptance of your Order.
‘Services’ means services and support provided by us to you.
‘Software’ means computer program(s) and associated documentation.
‘Working Day’ means Monday to Friday, excluding Bank or other Public holidays.
2. ORDERS
2.1 When you place an Order for Goods or Services, this will be regarded as an offer by you to purchase the Goods or Services subject to these Terms and we shall not be obliged to accept your offer at our discretion.
2.2 We will send you an Order Acknowledgement on receipt of your Order. This is not an order confirmation or order acceptance by us..
2.3 We will accept your offer and create a Contract with you by sending to you an Order Confirmation once we have confirmed availability of the Goods or Services, verified your credit or debit card or payment details as necessary and prepared the Goods for dispatch. We reserve the right to obtain validation of your payment details before providing you with any Goods or Services.
2.4 The Order Confirmation will be binding on you unless there is an unacceptable discrepancy between the Goods or Services that you ordered and those detailed in the Order Confirmation. You should notify us as soon as you become aware of any such discrepancy and in any event prior to the dispatch of the Goods.
2.5 If we cannot supply the Goods ordered by you, we reserve the right to offer alternative Goods of equal or superior quality. Any such changes will be detailed in the Order Confirmation. In such cases, if you do not wish to accept the alternative Goods offered, you may cancel the Order and require the refund of any money paid to us in respect of that Order, including carriage charges. This shall be your sole remedy.
2.6 We make every effort to supply the Goods as advertised but reserve the right to supply the Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer. Any such minor variation will not give you the right to cancel or rescind any Order or Contract made with us. Images of Goods are provided for illustrative purposes only and the actual Goods you receive may differ from the image displayed in the catalogue or on our website, especially with generic products.
2.7 When you place an Order, you are undertaking to us that:
(a) all details you provide to us for the purpose of purchasing Goods or Services are correct, and
(b) the credit or debit card you use to make a purchase from us is your own card, that you are authorised to use it, and that there are sufficient funds or credit facilities to cover the cost of any Goods or Services you order from us.
2.8 Cancellation of Orders. Other than in accordance with clause 2.4, we do not accept cancellation of orders by Business Customers once an Order Confirmation has been sent as many Orders are dispatched on the same day the Order is placed. We cannot accept cancellation of an Order for bespoke Goods which have been produced to your specific requirements.
2.9 Goods are not tested or sold as being fit for any particular application or for use under specific conditions, unless expressly agreed in writing.
3. PRICES AND PAYMENT
3.1 Goods and Services, together with VAT, are invoiced at the price prevailing at the time of your Order.
3.2 We reserve the right to vary our prices from time to time.
3.3 When you submit an Order, you will be notified of any additional costs including shipping and handling costs or insurance.
3.4 Payment is due prior to shipment unless you have been approved for credit. Our standard credit terms require payment within 14 days from the date of the invoice, except in the case of transactions where different terms are agreed by us in writing beforehand.
3.5 If you fail to make any payment due to us by the due date for payment (‘the due date’), then we may charge you interest on the overdue amount at the rate of 3% per annum above the Bank of England’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount.
3.6 Payment in advance for Orders to be delivered in the UK mainland may be made by cash, cheque or BACS.
4. DELIVERY, TITLE AND RISK
4.1 We shall use reasonable endeavours to despatch Goods to you by the estimated delivery date, but time shall not be of the essence for delivery and we shall not accept liability for failure to deliver within the stated time or on a stated day where this is caused by circumstances beyond our reasonable control, such as delays caused by delivery companies or manufacturer lead times.
4.2 If a delay is likely, we shall contact you and advise of the delay. You will not be entitled to damages or compensation if delivery of Goods does not occur on the estimated delivery date.
4.3 If we are unable to deliver the Goods within 30 days of the estimated delivery date, you will, as your sole remedy, be entitled to cancel the Order and require any monies paid to us in respect of that Order to be refunded. In order to cancel, you must send written notice of cancellation to us after the estimated delivery date but before actual delivery of the Goods or notification from us that the Goods are ready for delivery.
4.4 Delivery is deemed to take place when the Goods are delivered to your nominated address, whereupon the risks of loss, breakage and all damage and all other risks shall pass to you.
4.5 You are required to be able to accept the Goods when they are ready for delivery within Normal Working Hours.
4.6 Ownership of the Goods shall not pass to you until we have received in full (in cash or cleared funds) all sums due to us in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to us from you on any account.
4.7 Your right to possession of the Goods shall terminate immediately if you have a bankruptcy order made against you or if you make or know of any arrangements in respect of your actual or possible insolvency, liquidation, winding up or other arrangements with your creditors.
4.8 In the event that you have failed to make full payment for Goods by the due date, then as long as monies remain outstanding, we reserve the right to enter your premises at your expense and recover from there all Goods which remain our property.
4.9 If you cannot accept delivery, we may re-arrange delivery provided that we reserve the right to charge you for any delivery costs incurred.
4.10 Upon delivery of the Goods, you will be asked to sign a Proof of Delivery to acknowledge safe receipt. It is your responsibility to ensure that the number of packages delivered corresponds with the number stated on the delivery note. Where a discrepancy occurs or where there is evident damage to the packaging, you should either note this on the Proof of Delivery or refuse delivery of the Goods.
4.11 We shall not be liable for discrepancies or damage evident on delivery where you accept delivery and sign the Proof of Delivery without amendment.
4.12 You should notify us immediately and in any event no longer than 48 hours after delivery in the event that Goods are found to be damaged on delivery, items are missing or the Goods are not as specified in the Order Confirmation. If you need to return any Goods, then please see our Returns policy below.
5. RETURNS AND WARRANTIES
5.1 Other than the express provisions set out in these Terms, all other terms and the implied terms or warranties relating to the supply of goods or services are excluded to the fullest extent permitted by law.
5.2 In the event that you need to return Goods, then a Goods Returns Authorisation Number (RAN) must be obtained from us for each and every return so that we are able to administratively process your return, otherwise we have no means of identifying the Goods being returned and this may result in difficulties in returning monies. You will be sent a RAN acknowledgement by email which will also include a downloadable returns label that should be printed off and secured onto the exterior of the package. The RAN must be clearly shown on each parcel returned, and must be in the original manufacturer's packaging (which shall not be defaced) complete with accessories, manuals and documentation. Software packages must be returned unopened with the Software seals intact. Except in the case of faulty Goods, returned items not complying with these requirements will be rejected.
5.3 In the event that any Goods Delivered to you do not correspond with the Goods in the Order Confirmation, or have been Delivered to you by mistake, then you will be under a duty to take reasonable care of such Goods and to contact our Customer Services team immediately no later than 14 days. We will then arrange for a courier to collect the Goods and replacements to be supplied on a credit and recharge basis.
5.4 Care of Goods to be Returned
Whilst in possession of the Goods you will be under a duty to take reasonable care of them. We reserve the right to refuse a refund on Goods returned which have been made unfit for resale or damaged whilst in your possession.
5.5 Address for Returns of Goods
If you need to return Goods to us for whatever reason, then please send such items to: Envisage Technical Consultancy Ltd, 18 Haynings Mill, Framlingham Suffolk IP13 9JU
5.6 Return of Defective Goods
(a) In the event that Goods are found to be defective at any time within the first 30 days from delivery then please contact our Customer Services team immediately that you become aware of the defect. Different manufacturers have differing policies for dealing with Goods which are termed ‘dead on arrival’, meaning that the Goods are found to be faulty either on delivery or very shortly afterwards. You will therefore be advised by our Customer Services team of the relevant manufacturer’s returns policy. In such circumstances, we offer a "no charge" collection and delivery service. It is your responsibility to package and secure the Goods prior to collection to prevent damage during their return to us.
(b) We shall at our option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro-rata contract rate provided that you return the Goods to us with all internal and external parts that were delivered with the Goods.
(c) If we arrange for a courier collection of your Goods, this will normally take place between 9.00am and 5.00pm, and it is your responsibility to ensure that someone will be present at the collection address when the courier arrives.
(d) On receipt by us of the returned Goods, if following the testing process the Goods are found to be in good working order without defect, we will return the Goods to you, and the carriage costs of this return will be your responsibility. Please note that if you have, in the meantime, required us to provide you with replacement Goods before completion of the testing process, you will be liable to pay for these Goods. If, when we examine the Goods, it is evident that the defect has arisen because you have failed to follow ETC’s or the manufacturer’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods, or if you have altered the Goods without the written consent of ETC then we reserve the right to refuse a refund.
(e) You should note that we adhere to individual manufacturers’ guidelines in respect of acceptable deviation of quality of certain items. Therefore, we reserve the right not to accept Goods considered by you to be defective if the error or fault is within the manufacturer’s accepted manufacturing tolerances. If you have any doubt, please contact our Customer Services.
5.7 Warranty Claims
(a) If Goods become faulty more than 30 days after delivery then you are advised to contact the manufacturer and use their warranty procedure. Unless otherwise stated in the manufacturer’s documentation, all Goods carry a manufacturer’s warranty.
(b) If you wish to make a warranty claim, you must comply with the manufacturer’s instructions and warranty procedure. In order to resolve your problem as quickly as possible, we will refer you to the manufacturer who will deal directly with the return. In these instances, we will provide you with the contact information for the relevant manufacturer.
(c) All warranties provided under these Terms shall be invalidated if the Goods have been worked upon, altered or damaged in any way by you or your employees or agents, or if the Goods have not been used in accordance with the manufacturer’s instructions.
(d) You should note that certain Goods have a reduced warranty period. In particular, Goods specified as ‘refurbished’ are only subject to a 3-month warranty from the date of delivery. Your statutory rights are not affected when you purchase such Goods.
5.8 Return for credit
(a) In the event that we, at our absolute discretion, agree to accept the return for credit of unwanted products, the Goods must be returned with our prior written agreement within 14 days of delivery. The Goods must be unopened, with the manufacturers’ seals intact and in perfect re-saleable condition. All Goods returned in these circumstances will not be subject to a re-stocking fee. Please ensure that the Goods you have purchased are to your specification prior to breaking the manufacturers’ seals. This will avoid disappointment and the Goods being rejected, should you wish to return them.
(b) Any Goods returned unopened, with the manufacturers’ seal intact and in re-saleable condition, outside of the 14 days specified in clause 5.8(a) may be returned for credit subject to our absolute discretion and shall be decided by us on a case-by-case basis. All Goods returned in these circumstances will be subject to a reasonable re-stocking fee to cover our administrative charges.
(c) No Software on which seals have been broken can be returned for credit. If any Software discs are faulty, then you are advised to use the manufacturer’s warranty procedure. Please note Software Licences are non-returnable unless the Software is materially non-compliant with its specification or the physical media on which it is supplied is defective.
5.9 Provision of Services
(a) If you purchase Services from us, then we shall use our skill and expertise to carry out the Services to a high standard, and shall warrant our work as free from defects for a period of 30 days after completion. In particular, we cannot be held responsible for any fault or damage not caused by our services engineers or their contracted agents. In the event of a claim arising relating to the level of skill and judgement applied in the course of providing Services, we reserve at our sole discretion the right to appoint an independent expert in the field to appraise the work carried out in the execution of the Service(s).
(b) We accept no liability for equipment installed or configured by us when the equipment has subsequently been altered or configured by persons other than ourselves or our agents. Except as set out here, all other express or implied terms or warranties relating to the Services are excluded to the fullest extent permitted by law.
6. OUR LIABILITY
6.1 Subject to clauses 4 and 5, the following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
(a) any breach of these Terms;
(b) any use made or resale by you of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
6.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded.
6.3 Nothing in these Terms excludes or limits our liability:
(a) for death or personal injury caused by our negligence; or
(b) for any matter which it would be illegal for us to exclude or attempt to exclude our liability; or
(c) for fraud or fraudulent misrepresentation.
6.4 Subject to clause 6.2 and clause 6.3:
(a) our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) we shall not be liable to you for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
7. FORCE MAJEURE
7.1 We shall not be liable to you or be deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of our obligations in respect of the Goods or Services, if the delay or failure was due to any cause beyond our reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond our reasonable control: act of God, explosion, flood, tempest, fire or accident; war, threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving our employees or of a third party); difficulty in obtaining materials, labour or machinery; and power failure or breakdown in machinery.
7.2 If we are unable to provide you with your Goods within a reasonable time due to circumstances outside our control, we shall either agree a new timescale with you for the delivery of the Goods or either of us may decide to terminate the Order in which case we will return any prepayments that you have made in full.
8. ERRORS & OMISSIONS
8.1 We make every effort to ensure that all prices and descriptions quoted in our communications and on our website are correct and accurate. In the case of a manifest error or omission, we will be entitled to rescind the contract, notwithstanding that we may already have accepted your Order and/or received payment from you. Our liability in that event will be limited to the return of any money that you have paid in respect of the Order.
8.2 In the case of a manifest error in relation to price, you will be entitled to purchase the Goods or Services by paying the difference between the quoted price and the correct price, as confirmed in writing by us after the manifest error has been discovered. A ‘manifest error’, as the term is used in this clause 8, means, in relation to an incorrect price, a price quoted in error by us which is more than 10% less than the price that would have been quoted had the mistake not been made.
9. DATA PROTECTION
Envisage Technical Consultancy respects your privacy and is totally committed to protecting your personal information at all times. We only collect and use information about you lawfully in accordance with the Data Protection Act 1998.
We do not sell, transfer or disclose any of your personal information to a third party. You are at all times in control of any personal information you provide to us whilst on this website, and names, addresses and email addresses are only collected when voluntarily submitted by you.
What data do we collect?
- Your name and home address
- E-Mail address to send you an Order Acknowledgement
- Telephone number
Why do we collect it?
We need information about you for 2 reasons: firstly, to process your order and second, to provide you with the best possible service.
9.1 Credit Card Security
ETC maintains the highest levels of security when dealing with your order and payments.
We do not hold your credit card details either during, or after your transaction has taken place
9.2 Links to other websites
This ETC website contains links to carefully selected sites. If you visit one of these linked sites you should review their privacy and other policies. ETC can not be held responsible for the privacy and security practices or the content of such web sites.
10 Support Contract and Maintenence
10.1 Where your support contract provides telephone support, it is based on a response time of 4 hours but where the issue is deemed to be business critical we endeavour to respond within 1hour. We will use our best efforts to ensure telephone support is readily available throughout service hours, having regard to other commitments on our resources
10.2 Where your support contract provides remote support we will use our best efforts to ensure remote support is readily available throughout service hours provided we have unrestricted access to the systems that we are supporting.
11 Service & Support
11.1 Where your support contract provides, in addition to telephone & remote support, if an issue cannot be resolved over the telephone and/or remote support then an onsite visit will be made.Where your support contract provides for On Site Support, we will use reasonable efforts to have our representative attend the Installation address as soon as practicable, having regard to any business critical issues, also, having regards to other commitments on our resources. In the event of this service being applied subject to section 6 (excluded work), time on site will be non‐chargeable and is deemed covered under the support contract. Onsite support begins when our representative attends the reported fault, and ends when the reported fault has been rectified.
In the event that the reported fault cannot be rectified during the site visit, ETC will inform the relevant person on site, or as otherwise instructed as to the suggested course of action. Our representative may take rest periods where he feels it is necessary to do so where on site.
12 Service, Support & Preventative Maintenance
12.1 Where your support contract provides for, in addition to Telephone, Remote & Service Support, we will provide preventative maintenance visits where we, at a frequency as detailed in the support schedule and or monthly invoice, will attend site for the provision of maintenance of a minor nature which, in our opinion, is necessary from time to time to keep the system in reasonable operating condition, including, but not exhaustive of and including checking of backup procedures, disk optimisation and other software servicing procedures.
13 Excluded work / Exclusions
13.1 None of the support and maintenance routines provided by us cover: work required as a result of operator error or any other improper use, care of or accident to the system, any failure of or change in electricity, air conditioning, humidity control or other environmental or operating conditions not recommended or approved by us, or by the system manufacturer
13.2 Electrical or other work external to the equipment:
13.3 Work on any item of the equipment that has been moved, repaired or tampered with by any person other than our Representatives.
13.4 Repair or replacement of consumable accessories such as magnetic tapes, disc packs, batteries (including UPS), printer ribbons, ink, paper etc.
13.5 Work where the system is moved from the installation address without our prior written approval.
13.6 Work where the configuration of the system has been changed or additional hardware has been added to the system without our prior written approval.
13.7 Diagnoses of the failure of equipment not maintained by us.
13.8 Any fixing or patching of an operating system or applications software not purchased from us.
13.9 Work on old or unstable equipment where explicit recommendations to upgrade or replace are ignored. Where we consider that a peripheral hardware item of the system is no longer readily maintainable, we may (on giving you not less than sixty days prior notice) discontinue support for that peripheral, reducing the support charge accordingly or agree to maintain it at an additional charge.
13.10 Consultancy is not covered under ETC support contracts, unless supplied as part of service, support & preventative maintenance as covered and detailed in the support schedule.
13.11 Training is not covered by ETC Contracts either by telephone, remote or on site, where ETC feels that calls & Issued logged are caused by ‘lack of training’ then an ETC representative will advise accordingly and raise a quotation (where applicable) for training of said member (s) of staff (s) for the application / subject of the call logged
13.12 ETC, will not provide assistance under this support contract / agreement where, in ETC’s reasonable opinion, a fault is due to accident, neglect, misuse or failure of equipment, software, or media not supplied by ETC.
13.15 The correction and or restore of data following a user deleting information, entering incorrect data, maintaining the system is not covered under the support contract
13.16 ETC will not be liable for any consequential loss as a result of virus infection
14. Replacement parts
Where your Support contract provides, this being a hardware maintenance contract we may repair the system away from the installation address where we consider it necessary to do so, in which case we will try to complete the repair as soon as practicable.
15. Guarantees
All repairs carried out by us or our representatives shall be guaranteed for a period of thirty days. The guarantee does not affect your statutory rights.
16. Pre Contract Audit
This Support Contract is subject to the system being in a serviceable and fault‐ free condition. We therefore reserve the right to carry out a pre‐contract inspection. Should such inspection find the system not to be serviceable or fault‐free, any work required to make it so will be chargeable outside the terms of the Support Contract.
17. Data security
ETC shall not be held responsible for any data corruption or loss, howsoever caused. Should such data loss occur, ETC will make every effort to recover it but if 3rd party specialist data recovery services are required, then it is the customer’s responsibility to cover the cost for this
18. Charges and payments
The charge for support of the system shall be as set out in the Support Contract/Schedule and or invoice and shall payable from the date of acceptance of the Support Contract in writing by both parties and shall be subject to the following terms:
18.1. For the initial term of the contracted term you will not be required to pay any increased support charges. The amount of the support charge for each year of the contract term following the initial period may at our reasonable discretion be increased at any time on or after the expiration of the initial period subject to us giving you 60 days notice in writing of such increase
18.2 If any support charge or any part thereof shall remain unpaid 30 days after the same shall have become due we may (without prejudice to the right to recover the same) give notice in writing to you requiring you to pay such support charge or part thereof within seven days after receipt of such notice and if you shall fail to make the payment in full we may without prejudice to our right of recovery as a foresaid forthwith summarily terminate the support and all our obligations under the Support Contract.
18.3 Where you terminate the Support Contract as therein or herein provided any payments or arrears shall be apportioned up to the date of actual termination.
18.4 All charges are exclusive of Value Added Tax and any other taxes, which you shall pay in addition. The total support charge exclusive of VAT, for the initial period is detailed in the Support Contract.
18.5 All support charges shall be paid in advance and at the intervals and times as provided in the Support Contract\schedule and or invoice. On‐site or supplementary support costs will be invoiced on completion with payment due after 30 days for credit account customers.
19. Other services
If we agree to carry out work outside the preventative maintenance routine or telephone, remote or on site support, you agree to pay either the fee agreed or if no fee is agreed, our standard charge for consultancy and parts for such work prevailing at that time. Such work is undertaken outside the terms of the Support Contract.
20. Access and co‐operation
You will provide our representative on request with unrestricted access to the system and will provide such further facilities and assistance as our representative may reasonably require enabling him to carry out the work. Such assistance may include running time to test the system. We shall not be liable where we are unable to provide support or other services as a result of your failure to provide such facilities or assistance. You will ensure that your representative will be present at all times when our representative is at the Installation address, failing which we shall be entitled to suspend the work. Customers will ensure that where necessary ETC are informed of any password changes to allow them to carry out support covered under this contract
21. Obligations
21.1 The person, Company, Organisation, Licensee’s has an obligation and will care for the software / hardware covered under this support contract and will operate with the terms of the licence / operational instructions published by the Software Vendor or manufacture or ETC .
21.2 The person, company, organisation, licensee holds ultimate responsibility for ensuring that a backup is made, where for what ever reason ETC advises, in the event of corrupt data that a restore is carried out, it is the persons, company or organisations responsibility to do so.
22. Limitation of liability
22.1 We shall be under no liability for loss or damage or any consequential or indirect loss or damage arising from the performance or failure by us to carry out work additional or extraneous to the terms of the Support Contract unless we have agreed in writing to do so and the written agreement is signed by our duly authorised representative.
22.2 ETC and or its Distributors and or it’s third party software vendors and or it’s business partners are not and will not be liable in any event for any lost profits, loss of data, or consequential, special or indirect damages arising from performance or nonperformance of services under this support contract and or agreement
22.3 In respect of injury (including death) to any person caused by ETC /and or those listed in 22.2, negligence , ETC and or those listed in 22.2 liability to the persons (s), company or Organisation, licensee, end user will not exceed the charge agreed hereunder for the initial terms
22.4 Software provided by a third party vendor through ETC to a Person, Company, Organisation as detailed in the support schedule, shall be subject to the terms under which the original software was supplied, by the said software vendor and the fact that ETC may offer support, consultancy & training on said product does not alter said terms
22.5 Neither party shall be liable for any delays in meeting any of its obligations under this support contract agreement which were due to causes beyond its reasonable control
22.6 ETC, will not provided assistance under this support contract / agreement where, in ETC’s reasonable opinion, a fault is due to accident, neglect, misuse or failure of equipment, software, or media no supplied by ETC
22.7 Where in clause 14.2 the person, customer or organisation does not take ETC’s advise and restore to a previous back up ETC will not be liable with regards to any loss of data, corruption and / or work
23. Confidentiality
Neither ETC or the Person, Company or Organisation will, without the other’s written consent , disclose to any third party any information concerning the business or method of working of the other party which may be revealed to it during the currency of this agreement or otherwise except as required by law or to the extent that such information may become public knowledge or may be acquired or generated by either party independently from the other otherwise than by reason of a breach of this clause
24. Termination of Support Contract
The Support Contract may be terminated forthwith:
24.1 By either party if the other is in fundamental breach of any of its obligations or where the breach is capable of remedy, the party in breach has failed to rectify the same within such reasonable time as the other may direct in writing.
24.2 By us if you are in breach of any of your obligations (including the obligation to pay charges when due) on this or any other agreement between the parties, without prejudice to our other remedies (including the right to terminate the agreement on a continuing or further breach or to suspend the provision of our services.
24.3 By us if you are an individual (and if more than one, any of you) a petition in bankruptcy is presented against you or an interim receiver of your property is appointed or if you are a company a petition is presented for your winding up or you enter into liquidation (unless solely for the purpose of amalgamation or reconstruction when solvent), or have an administrative receiver appointed or an administration order made in respect of your property or if (being a company or an individual) you enter into any scheme of arrangement with your creditors
24.4 By us if a third party (such as system manufacturers) upon whom we are dependent for maintaining or supplying all or parts of the system terminates such contracts or arrangements with us. In such circumstances we shall give you as much notice of such termination (if any) as practicable but shall not be liable in any way for such termination. In such circumstances we shall use our reasonable efforts to offer an equivalent service from an alternative third party save that we shall be entitled to increase our charges without notice if the cost of supply to us increases.
24.5 Termination of the Support Contract shall not affect any pre‐existing liabilities of either party to the other.
25. Assignment
We may assign, subcontract or otherwise dispose of our obligations under the Support Contract or any other agreement between the parties to any other party. Specifically, where we procure that a third party (such as the system manufacturer) provides a preventative maintenance routine, telephone, modem or on site support or other services to you, you shall be bound by any additional terms which the third party may impose either on us or you, and if there is any inconsistency between the terms of business of the third party of and the terms of the Support Contract the terms of the third party terms shall prevail. You may not assign the Support Contract without prior written consent of us.
26. Entire agreement
The terms constitute the entire agreement between the parties and supersede all previous representations and agreements for the provision of support or other form of support for the system, which shall forthwith cease to have any effect. No variation or addition to these terms shall be of any effect unless made in writing signed on behalf of you and of us.
27. Notices
Notices shall be in writing and sent to the postal address of the appropriate party set out in the Support Contract or to such other address as may from time to time (by notice to other party) be designated, or by electronic methods such as email to the contact name on the support schedule . Notice shall be deemed to have been duly given on the date of delivery if delivered by hand / fax /email or three days after the date of posting if sent by first class mail. In proving, service by post it shall be sufficient to prove the envelope containing the notice was properly addressed, stamped and posted, In proving service by email it shall be sufficient to prove by fact that the notice when/if provided stated an invoice date the notice applies, and the fact that the invoice relating to that date is received by the customer and paid
28. Sole appointment
You shall not allow any person other than our representative to support the system.
29. Law
This agreement shall be construed and operate in accordance with the Laws of England and the parties submit to the jurisdiction of the English courts