Part 1 - Sale of Goods
The following terms and conditions in this Part 1 apply to the sale of Goods by MCWare IT Solutions
1. Formation of Contract
1.1 MCWare IT Solutions will sell and the Customer will buy the Goods in accordance with MCWare IT Solutions written quotation (if accepted by the Customer) or the Customer's written order (if accepted by MCWare IT Solutions) subject in either case to these Terms. No order submitted by the Customer is deemed to be accepted by MCWare IT Solutions unless MCWare IT Solutions confirm this in writing.
2. Accuracy of Order
2.1 The Customer is responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer.
3.1 All software, whether supplied, installed or implemented is provided within the terms and conditions and licence of the software provider.
3.2 If the software comprised in the Goods is not owned by MCWare IT Solutions then the Customer will be required to enter into an end-user licence agreement with the owner of the software concerned.
3.3 If any software has to any extent been written or developed by MCWare IT Solutions then subject to clause
3.2 above, MCWare IT Solutions hereby grants a non-exclusive, non-transferable licence for the use of such software by the Customer for the duration of this Contract and all copies of such software are the property of MCWare IT Solutions and notwithstanding clause 5.1 no title or ownership thereof will be transferred to the Customer.
4.1 Delivery of the Goods will take place by MCWare IT Solutions delivering the Goods to the place agreed in writing with the Customer.
4.2 Any dates and times quoted for delivery are estimates only and unless otherwise agreed in writing, delivery times are not of the essence of the contract. MCWare IT Solutions will not be liable for any loss or damage (howsoever arising) to the Customer should MCWare IT Solutions be unable to deliver the Goods within the quoted period.
4.3 MCWare IT Solutions is entitled to make partial deliveries by instalments and these Terms will apply to each partial delivery.
4.4 If the Goods are to be delivered in instalments, each delivery will constitute a separate contract and failure by MCWare IT Solutions to deliver any one or more instalments in accordance with these Terms will not entitle the Customer to treat the Contract as a whole as terminated.
5. Transfer of Property and Risk
5.1 Risk in respect of the Goods passes to the Customer at the time of delivery but the title in the Goods will not pass to the Customer until MCWare IT Solutions has received payment in full of the price of the Goods and all other goods agreed to be sold or services to be provided by MCWare IT Solutions to the Customer for which payment is then due.
5.2 Until title in the Goods has passed to the Customer, MCWare IT Solutions will be entitled at any time to require the Customer to deliver up the Goods to MCWare IT Solutions and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
5.3 Until title in the Goods has passed to the Customer, the Customer will hold the Goods as MCWare IT Solutions fiduciary agent and bailee, will not dispose of the Goods and will keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as MCWare IT Solutions property.
6.1 Where MCWare IT Solutions written quotation for the sale of the Goods or the Customer's written order for the Goods (if accepted by MCWare IT Solutions) specifies installation of the Goods or MCWare IT Solutions otherwise undertakes any such installation then the Customer will complete all necessary works that may be required to receive the installation of the Goods including all necessary IT infrastructure and suitable electrical supply. If MCWare IT Solutions is prevented or delayed from carrying out the installation through no fault of MCWare IT Solutions then MCWare IT Solutions is entitled to charge the Customer at MCWare IT Solutions then current prices for any additional works carried out by or on behalf of MCWare IT Solutions to enable it to complete the installation and/or for compensation for any losses or costs incurred by MCWare IT Solutions by reason of such delay.
7.1 The Goods supplied hereunder are warranted to be free from defects in materials and workmanship for a period of 90 days from the date of delivery by MCWare IT Solutions. The Customer must within the said period of 90 days notify MCWare IT Solutions in writing of any such defects and permit MCWare IT Solutions to inspect the Goods as required by MCWare IT Solutions. If the Customer does not so notify then the Customer will not be entitled to reject the Goods and MCWare IT Solutions will have no liability for such defect.
7.2 The above warranty only applies where the Goods have been properly used in accordance with the relevant manufacturer's specifications and any instructions by MCWare IT Solutions and does not apply to any Goods that have been repaired or modified by anybody other than MCWare IT Solutions.
7.3 If a valid claim is notified under clause 7.2 above then MCWare IT Solutions may at its discretion repair or replace the Goods free of charge or refund the price of the Goods (or a proportionate part) in which case MCWare IT Solutions will have no further liability to the Customer.
Part 2 - Provision of Service Contract Maintenance Services
The following terms and conditions apply to the maintenance service described in the Scope of Service to be provided for the Equipment specified in the Scope of Service ("the Service Contract Maintenance")
1. MCWare IT Solutions Responsibilities
1.1 MCWare IT Solutions will, subject to these Terms, provide the Service Contract Maintenance in accordance with the terms of the Scope of Service.
1.2 MCWare IT Solutions will use its reasonable endeavours to respond to a valid Call within the response time set out in the Scope of Service.
1.3 MCWare IT Solutions will use its reasonable endeavours to rectify defects or malfunctions in the Equipment on the telephone or by use of remote access where provided by the Customer.
1.4 If a defect or malfunction in the Equipment cannot be resolved on the telephone or by remote access, MCWare IT Solutions will use its reasonable endeavours to visit the Installation Address within the response times set out in the Scope of Service.
1.5 When carrying out work in accordance with these Terms, MCWare IT Solutions will use its reasonable endeavours to return the Equipment to service and, subject to these Terms, reinstate the Customer's applications.
1.6 MCWare IT Solutions may at its discretion provide a permanent replacement part for the Equipment, either new or refurbished, and on exchange that part becomes the property of the Customer, and the faulty part replaced becomes the property of MCWare IT Solutions.
1.7 MCWare IT Solutions may repair the Equipment away from the Installation Address when it considers it necessary to do so.
1.8 MCWare IT Solutions may at its discretion, lend the Customer temporary replacement equipment (as compatible as may be available) while repairs are carried out. Equipment loaned to the Customer remains MCWare IT Solutions property and will be returned to MCWare IT Solutions on demand. The Customer is entirely responsible for such equipment and will indemnify MCWare IT Solutions in respect of any loss or damage to that equipment.
1.9 MCWare IT Solutions may make use of new releases, patches and updates of Third Party Software to rectify known problems where this is permitted under the applicable software licence agreement.
1.10 Where MCWare IT Solutions is required to carry out or does carry out work that is subsequently found to be outside Service Contract Maintenance, MCWare IT Solutions will be entitled to charge for that work at MCWare IT Solutions then current rates.
2.1 Service Contract Maintenance will commence on the date set out in the Scope of Service and, subject to these Terms, continue unless and until either party serves at least one month's prior written notice of termination on the other expiring on the date of expiry of the Initial Term or any anniversary thereafter.
3. Period of Availability
3.1 MCWare IT Solutions will only provide Service Contract Maintenance during the Scheduled Service Hours. If the Customer requests MCWare IT Solutions to carry out any Service Contract Maintenance outside the Scheduled Service Hours then, MCWare IT Solutions will use its reasonable endeavours to comply with this request but will charge the Customer for such services at MCWare IT Solutions then current rates.
3.2 The time taken by MCWare IT Solutions to respond to a Call will only be measured during the Scheduled Service Hours.
These terms and conditions apply to the sale, licence and maintenance (as applicable) by MCWare IT Solutions of any computer hardware or software or other similar or associated items or materials. These terms are divided into three parts; Sales, Service Contract Maintenance. The General Terms apply to all contracts of MCWare IT Solutions. The remaining terms apply depending upon the service to be provided by MCWare IT Solutions.
4. Customer Responsibilities
4.1 The Customer will keep the Equipment in the environmental conditions recommended by the Equipment manufacturer and ensure that the external surfaces, cables and fittings of the Equipment are kept clean and in good condition.
4.2 The Customer will ensure that the Equipment is only used by properly trained staff in accordance with the manufacturer's user instructions, current computing practice and instructions issued by MCWare IT Solutions from time to time.
4.3 The Customer will ensure that only personnel authorised by MCWare IT Solutions adjust, modify, configure, maintain, repair, replace or remove any part of the Equipment.
4.4 The Customer will maintain adequate records of the use, maintenance and malfunction of the Equipment and will provide MCWare IT Solutions with such information and assistance concerning the Equipment, its application, use, location and environment as MCWare IT Solutions may reasonably require to enable it to carry out the Service Contract Maintenance.
4.5 The Customer will immediately notify MCWare IT Solutions if there is any failure of the Equipment and will allow MCWare IT Solutions full and free access to the Equipment and all documentation, software, materials and services necessary for the provision of the Service Contract Maintenance.
4.6 The Customer will ensure that relevant trained and experienced staff are available when required by MCWare IT Solutions to provide MCWare IT Solutions with information required by MCWare IT Solutions to diagnose and/or repair the Equipment.
4.7 Where MCWare IT Solutions provides remote diagnostic services in respect of the Equipment, the Customer will put and keep in place a remote access link to the Equipment which is acceptable to MCWare IT Solutions.
4.8 The Customer must tell MCWare IT Solutions in writing immediately that the Equipment or any part of it is changed.
4.9 The Customer will notify MCWare IT Solutions of change in the location of any part of the Equipment. Whilst any Equipment is being moved, all MCWare IT Solutions obligations to provide the Service Contract Maintenance will be suspended. The Service Contract Maintenance will be reinstated following re-installation of the Equipment provided that the Equipment has not been damaged or affected during the move.
4.11 Unless specifically included in the Scope of Service, the Customer is responsible for the cost of any Third Party Software upgrades which MCWare IT Solutions advise are required.
4.12 It is the Customer's sole responsibility, in a manner acceptable to MCWare IT Solutions, to operate and verify a proper back up routine, maintaining all back up copies in a secure environment such that they can and will be provided to MCWare IT Solutions when required.
4.13 The Customer undertakes to put and keep in place adequate security measures to protect the Equipment and any other software or data from viruses, harmful code or unauthorised access.
4.14 The Customer is solely responsible for any connection charges, line rental charges and call charges in relation to any Equipment.
5. Proactive Support Visits
5.1 During each consecutive 12 month period of the Service Contract Maintenance, MCWare IT Solutions will provide to the Customer the number of support visits specified in the Scope of Service during Normal Working Hours, the purpose of which is to provide general support in respect of the operation of the Service Contract Maintenance.
6. System Audit
6.1 MCWare IT Solutions will, as often as MCWare IT Solutions thinks necessary and (save in the event of an emergency) upon reasonable notice carry out a System Audit within MCWare IT Solutions Normal Working Hours to confirm that, in MCWare IT Solutions opinion, the Equipment is in reasonable operating condition.
7. Service Exclusions
7.1 The Service Contract Maintenance does not extend to:
7.1.1 Any Equipment not specified or included in the Scope of Service including any part of the Equipment which is in any way changed from that included in the Scope of Service;
7.1.2 any Equipment which was, in MCWare IT Solutions reasonable opinion, operating in an unstable or unsuitable manner prior to the commencement of the Service Contract Maintenance;
7.1.3 any work arising as a result of any breach by the Customer of any of its obligations under these Terms;
7.1.4 any work arising from any incident, wilful act or any error or omission in the operation of the Equipment or any other cause (except for wear and tear) which is not due to the neglect or default of MCWare IT Solutions;
7.1.5 any failure or defect caused by hardware or software not covered by these Terms;
7.1.6 failures or defects due to manufacture or design defects over which MCWare IT Solutions has no control;
7.1.7 refurbishment or repair of casings or outer surfaces;
7.1.8 any work to accessories, alterations, attachments or any other equipment that is external to the Equipment not identified within the Scope of Service;
7.1.9 reinstatement of customised versions of the standard desktop operating system;
7.1.10 reinstatement of the Customer's software and data not identified within the Scope of Service;
7.1.11 any consultancy, training or software or hardware MCWare IT Solutions may provide;
7.1.12 integration of the Equipment or any part thereof with other systems;
7.1.13 cleansing of viruses and spyware, or resolving the consequences of security breaches and incompatibilities in hardware and/or software.
7.1.14 upgrading the Operating Platform to be able to operate the Customer's selected software applications;
7.1.15 consumable supplies or accessories such as magnetic media, batteries, print heads, toner cartridges, ink, paper, and any other items identified as consumable by the Equipment manufacturer, unless listed in the Scope of Service;
7.1.16 any Equipment in respect of which a notice has been served by MCWare IT Solutions under clauses 8 or 9;
7.1.17 any work arising by reason of any maintenance or repair work carried out in respect of the Equipment by a third party not previously approved in writing by MCWare IT Solutions;
7.1.18 in respect of any personal digital assistants or other mobile solutions comprised within the Equipment anything other than support of the Third Party Software to enable synchronisation to such server of the Customer as is specified in the Scope of Service.
8. Beyond Reasonable Repair
8.1 MCWare IT Solutions will give the Customer written notice if, in its reasonable opinion, the Equipment (or any part of it) is identified as "end of life", becomes beyond reasonable repair or spare parts become not readily available, or if faults and/or its condition are such that overhaul or replacement is necessary at which point any obligations of MCWare IT Solutions to provide the Service Contract Maintenance in respect of such equipment will be suspended. If the Customer declines to have the Equipment overhauled or replaced at its expense within thirty days of such notification, MCWare IT Solutions may on written notice exclude such equipment from this Contract and refund to the Customer by way of credit note a fair proportion of any Charges which have been paid by the Customer in respect of such equipment from the end of the notice period and will remove any loan equipment relating to the said equipment from the end of the notice period.
8.2 The provisions of clause 8.1 will apply equally in respect of any software included within the Equipment which, in the reasonable opinion of MCWare IT Solutions, is no longer economically viable to maintain or requires upgrading or updating.
9. Pre Inspection
9.1 Prior to commencement of the Service Contract Maintenance, MCWare IT Solutions may during Normal Working Hours inspect the Equipment, or any part of it, at the Installation Address to confirm that it is, in MCWare IT Solutions reasonable opinion, in full working order in accordance with the manufacturer's requirements. If work is required to put the Equipment in such full working order MCWare IT Solutions will notify the Customer accordingly. If the Customer declines to have such work carried out at its expense within thirty days of such notification, MCWare IT Solutions may on written notice exclude such equipment from Service Contract Maintenance and will refund to the Customer by way of credit note a fair proportion of any Charges which have been paid by the Customer in respect of such equipment from the end of the notice period.
Part 3 - General Provisions
The following terms and conditions apply to all Equipment sold or to be sold and/or Software licensed or to be licensed and/or Service Contract Maintenance provided or to be provided to the Customer.
1.1 These Terms may only be amended, or varied with MCWare IT Solutions agreement in writing. The parties agree that these Terms will prevail notwithstanding any conflicting or additional terms or any orders or other notifications submitted by the Customer.
1.2 Words of a technical nature used in these Terms will (unless inconsistent with the context) be construed in accordance with general trade use in the computer industry in the United Kingdom.
1.3 Headings in these Terms are for convenience only and have no effect on the interpretation.
1.4 Failure by either party to exercise or enforce any rights, or the giving of any forbearance, delay or indulgence, will not be construed as a waiver of its rights under these Terms or otherwise nor will any single or partial exercise thereof preclude any further or subsequent exercise.
'Notwithstanding delivery and the passing of risk, property in and title to the goods shall remain with the seller until the seller has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other goods and/or services supplied by the seller to the buyer under any contract whatsoever. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the seller and the buyer.