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These terms and conditions apply to the sale, licence and maintenance (as applicable) by Smart EPOS Limited (“Smart EPOS”) of any computer hardware or software or other similar or associated items or materials. These terms are divided into three parts: Sales, System Maintenance and General. The General Provisions apply to all contracts of Smart EPOS. The remaining terms apply depending upon the service to be provided by Smart EPOS
1.1Part 1- Sale of Goods
The following terms and conditions in this Part 1 apply to the sale of Goods by Smart EPOS.
1.1.1 Formation of Contract
(a) Smart EPOS will sell and the Customer will buy the Goods in accordance with these terms. No order submitted by the Customer is deemed to be accepted by Smart EPOS unless Smart EPOS confirm this in writing.
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1.1.2Accuracy of Order
(a)The Customer is responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer.
1.1.3Software
(a)All Software, whether supplied, installed or implemented is provided within the terms and conditions and licence of the software provider.
(b)If the Software comprised in the Goods is not owned by Smart EPOS then the Customer will be required to enter into an end-user licence agreement with the owner of the Software concerned.
(c)Where Smart EPOS supply any part of the Maintained Software that is not software which Smart EPOS owns and has developed, Smart EPOS have taken reasonable steps to ensure that it does not infringe the rights of third parties. Smart EPOS cannot be held responsible for any such infringement, save that if the infringement relates to the whole (as opposed to the part) of any Software supplied pursuant to this Agreement, Smart EPOS shall (at our option):
(i)Replace that Software with non-infringing Software;
(ii)Obtain at no cost to the Customer a valid licence to continue to use the Software; or
(iii)Refund the licence fee applicable to that Software.
(d)In any of those cases, Smart EPOS shall be under no further liability to the Customer in respect of that Software.
(e)If any Software has to any extent been written or developed by Smart EPOS then subject to clause 6.1.3(b) above where the Software was originally not owned by Smart EPOS, Smart EPOS 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 Smart EPOS and notwithstanding clause 6.1.5(a) no title or ownership thereof will be transferred to the Customer.
(f)Where Smart EPOS has provided any of the Maintained Software it shall not be liable for the Maintained Software’s fitness for any purpose or that it will be of satisfactory quality and suitable for the Customer’s needs. The Customer is obliged to investigate the suitability of the Maintained Software as part of the Maintained Network. Smart EPOS warrant only that it complies with its description as set out in its written quotation.
1.1.4Delivery
(a)Delivery of the Goods will take place by Smart EPOS delivering the Goods to the place agreed in writing with the Customer.
(b)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. Smart EPOS will not be liable for any loss or damage (however arising) to the Customer should Smart EPOS be unable to deliver the Goods within the quoted period.
(c) Smart EPOS is entitled to make partial deliveries by instalments and this Agreement will apply to each partial delivery.
(d)If the Goods are to be delivered in instalments, each delivery will constitute a separate contract and failure by Smart EPOS to deliver any or more instalments in accordance with this Agreement will not entitle the Customer to treat the Contract as a whole as terminated.
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1.1.5Transfer of Property and Risk
(a)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 Smart EPOS 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 Smart EPOS to the Customer for which payment is then due.
(b)Until title in the Goods has passed to the Customer, Smart EPOS will be entitled at any time to require the Customer to deliver up the Goods to Smart EPOS, 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.
(c)Until title in the Goods has passed to the Customer, the Customer will hold the Goods as Smart EPOS’s fiduciary agent and Bailee, will not dispose of the Goods and will keep the Goods separate from those of the Customers and third parties and properly stored, protected and insured and identified as Smart EPOS’s property.
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1.1.6Installation
(a)Where Smart EPOS's written quotation for the sale of the Goods or the Customer's written order for the Goods (if accepted by Smart EPOS) specifies installation of the Goods or Smart EPOS otherwise undertakes any such installation then the Customer will:
(i)Ensure that surfaces to which the Goods may be affixed are in a sound condition;
(ii)Provide a safe suitable electrical supply at the Installation Address;
(iii)Give the employees or sub-contractors of Smart EPOS unhindered access to the Installation Address;
(iv)Make sure that all parts of the Installation Address, where the Goods will be transported through or installed, are safe;
(v)Provide suitable services (e.g. cooling water) at the Installation Address; and
(vi)Arrange for access to the Installation Address to be available at the time arranged for installation of the Goods.
(b)If Smart EPOS is prevented from carrying out the installation through no fault of Smart EPOS then Smart EPOS is entitled to charge the Customer at Smart EPOS’s then current prices for any additional works carried out by or on behalf of Smart EPOS to complete the installation, including (without limitation) any lost time, profit or other expense incurred by Smart EPOS.
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1.1.7Warranty
(a)The Goods supplied hereunder are warranted to be free from defects in materials and workmanship for a period of 60 days from the date of delivery by Smart EPOS. The Customer must within the said period of 60 days notify Smart EPOS in writing of any such defects and permit Smart EPOS to inspect the Goods as required by Smart EPOS. If the Customer does not so notify then the Customer will not be entitled to reject the Goods and Smart EPOS will have no liability for such defect.
(b)The above warranty only applies where the Goods have been properly used in accordance with the relevant manufacturer's specifications and any instructions by Smart EPOS and does not apply to any Goods that have been repaired or modified by anybody other than Smart EPOS.
(c)If a valid claim is notified under clause 6.1.7(a) above then Smart EPOS may at its discretion repair or replace the Goods (or part of the Goods) free of charge or refund the price of the Goods (or a proportionate part) in which case Smart EPOS will have no further liability to the Customer in respect of such Goods or part of Goods as have been repaired or replaced.
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1.2Provision of System Maintenance Service
The following terms and conditions apply to System Maintenance as provided pursuant to these terms and conditions:
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1.2.1 Smart EPOS Responsibilities
(a) Smart EPOS will, subject to this Agreement, provide the System Maintenance in accordance with the terms of the Scope of Service.
(b) Smart EPOS will use its reasonable endeavours to respond to a valid Call within the response time set out in the Scope of Service.
(c) Smart EPOS will use its reasonable endeavours to rectify defects or malfunctions in the Maintained Network on the telephone or by use of remote access where provided by the Customer.
(d)If a defect or malfunction in the Maintained Network cannot be resolved on the telephone or by remote access, Smart EPOS will use its reasonable endeavours to visit the Installation Address within the response times set out in the Scope of Service.
(e)When carrying out work in accordance with this Agreement, Smart EPOS will use its reasonable endeavours to return the Maintained Network to service and, subject to this Agreement, reinstate the Customer's applications.
(f) Smart EPOS may at its discretion provide a permanent replacement part for the Maintained Network, either new or refurbished, and on exchange that part becomes the property of Customer, and the faulty part replaced becomes the property of Smart EPOS.
(g) Smart EPOS may repair the Maintained Network away from the Installation Address when it considers it necessary to do so.
(h) Smart EPOS may at its discretion, lend the Customer temporary replacement equipment (as compatible as may be available) while repairs are carried out. Temporary replacement equipment loaned to the Customer remains Smart EPOS 's property and will be returned to Smart EPOS on demand. The Customer is entirely responsible for such equipment and will indemnify Smart EPOS in respect of any loss of damage to that equipment.
(i) Smart EPOS 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.
(j)Where Smart EPOS is required to carry out or does carry out work that is subsequently found to be outside System Maintenance, Smart EPOS will be entitled to charge for that work at Smart EPOS's then current rate.
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1.2.2Term
(a)System Maintenance shall commence on the date set out in the Scope of Service and, subject to the terms of this Agreement, will continue unless and until either party serves on the other one month’s written notice of termination, which may only be served after the Initial Term has expired.
1.2.3Period of Availability
(a) Smart EPOS will only provide System Maintenance during the Scheduled Service Hours. If the Customer requests Smart EPOS to carry out any System Maintenance outside the Scheduled Service Hours, then Smart EPOS will use its reasonable endeavours to comply with this request but will charge the Customer for such services at Smart EPOS’s then current rates.
(b)The time taken by Smart EPOS to respond to a Call will only be measured during the Scheduled Service Hours.
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1.2.4Customer Responsibilities
The Customer shall, at its own expense, without prejudice to any specific obligations set out in the Scope of Service, do the following:
(a)Keep the Maintained Network in the environmental conditions recommended by the Maintained Network manufacturer and ensure that the external surfaces, cables and fittings of the Maintained Network are kept clean and in good condition.
(b)Ensure that the Maintained Network is only used by properly trained staff in accordance with the manufacturer's user instructions, current computing practice and instructions issued by Smart EPOS from time to time.
(c)Ensure that only personnel authorised by Smart EPOS adjust, modify, configure, maintain, repair, replace or remove any part of the Maintained Network.
(d)Secure all way leaves, permissions, licences, waivers, consents, registrations and approvals necessary for Smart EPOS, its agents and sub-contractors to provide the System Maintenance.
(e)Provide a suitable supply of electricity, water, gas, test exchange lines and any other services as Smart EPOS shall reasonably require from time to time.
(f)Provide or procure the provision of free, safe and unimpeded access to the Customer's premises (or such other premises or sites required by Smart EPOS) for Smart EPOS, its employees, agents and subcontractors for the purposes of providing the System Maintenance. To enable access, the Customer shall provide Smart EPOS with a list of Customer Contacts who can be reached during the Working Day;
(g)Maintain adequate records of the use, maintenance and malfunction of the Maintained Network and will provide Smart EPOS with such information and assistance concerning the Maintained Network, its application, use, location and environment as Smart EPOS may reasonably require to enable it to carry out the System Maintenance.
(h)Immediately notify Smart EPOS if there is any failure of the Maintained Network and allow Smart EPOS full and free access to the Maintained Network and all documentation, software, materials and services necessary for the provision of the System Maintenance.
(i)Install patches and upgrades to all Maintained Software (that is reasonably necessary for the functioning of Maintained Network) as and when Smart EPOS notify the Customer to do so. Any costs resulting from such patches or upgrades will be borne by the Customer.
(j)Ensure that relevant trained and experienced staff are available when required by Smart EPOS to provide Smart EPOS with information required by Smart EPOS to diagnose and/or repair the Maintained Network.
(k)Where Smart EPOS provides remote diagnostic services in respect of the Maintained Network, put and keep in place a remote access link to the Maintained Network which is acceptable to Smart EPOS.
(l)where applicable, not modify or make any attachment to any part of the Maintained Network or any Non-maintained Hardware and/or Non-maintained Software which is connected to the Maintained Network without first notifying Smart EPOS in writing and obtaining Smart EPOS 's prior written agreement (such agreement not to be unreasonably withheld or delayed);
(m)where applicable, provide Smart EPOS with a list of all Non-maintained Software and Non-maintained Hardware linked to or used in conjunction with the Maintained Network and the details of all service-providers offering maintenance and support services for the Non-maintained Software and Non-maintained Hardware;
(n)Notify Smart EPOS of changes in the location of any part of the Maintained Network. Whilst any Maintained Network is being moved, all Smart EPOS 's obligations to provide the System Maintenance will be suspended. The System Maintenance will be reinstated following re-installation of the Maintained Network provided that the Maintained Network has not been damaged or affected during the move. Smart EPOS reserve the right to reassess and vary the Charges after any move if in the opinion of Smart EPOS
(o)Unless specifically included in the Scope of Service, the Customer is responsible for the cost of any Third Party Software upgrades which Smart EPOS advise is required.
(p)In a manner acceptable to Smart EPOS, operate and verify a proper back up routine, maintaining all backup copies in a secure environment such that they can and will be provided to Smart EPOS when required.
(q)Put and keep in place adequate security measures to protect the Maintained Network and any other software or data from viruses, harmful code or unauthorised access.
1.2.5HARDWARE
Non-maintained Hardware
(a)The Customer warrants that, for the duration of this Agreement, any Non-maintained Hardware is fit for its purpose and does not interfere with the proper operation of the Maintained Network.
(b)The Customer acknowledges that alterations or upgrades to Non-maintained Hardware and Non-maintained Software may necessitate alterations or upgrades to the Maintained Software and/or the Maintained Hardware. The costs of making the alterations or upgrades shall be the sole responsibility of the Customer.
(c)If the Customer does not comply with any of its obligations under Clause 6.2.5(a), Smart EPOS shall not be liable under this or any other agreement or under statute or otherwise for Smart EPOS‘s failure to provide the Services in accordance with this Agreement. In addition Smart EPOS at its discretion, may:
(i)Terminate this Agreement after which Clauses 6.3.14(b) - 6.3.14(d) shall apply;
(ii)Continue to provide the System Maintenance but at such a reduced level as Smart EPOS decides; or
(iii)Adjust the Charges for maintaining the provision of the System Maintenance at the same level as provided for under this Agreement.
Maintained Hardware
(d)The Customer acknowledges that the relevant supplier may not continue to support and provide parts for the Maintained Hardware during the Term and accordingly the provision of the System Maintenance may be affected.
(e)If the relevant third party supplier (or any organisation nominated by it) ceases to provide either support or spare parts for any of the Maintained Hardware during the Term, Smart EPOS shall notify the Customer in writing with as much advance notice as is reasonably practicable and shall propose to the Customer alternative arrangements in relation to the same, for example:
(i)A fixed price quotation for upgrading to the latest Maintained Hardware;
(ii)Replacement hardware offering functionality not materially different from the Maintained Hardware; or
(iii)In any case Smart EPOS shall state whether the Charges are to be adjusted as a result and if so how and when any additional payment or rebate is to be made.
(f)If Smart EPOS makes a proposal to the Customer under the preceding sub-clause, the Customer shall respond within 28 days and if appropriate may select the alternative offered that it prefers. If the Customer fails to respond or declines the proposal, Smart EPOS shall have no further obligation to the Customer to the extent of the impact of the relevant Maintained Hardware on the Maintained Network or any part of it.
1.2.6SOFTWARE
(a)The Maintained Network may utilise all or some of Maintained Software and/or Non-maintained Software.
Maintained Software
(b)With respect to Maintained Software, during the contracted working hours as set out in the Scope of Service Smart EPOS shall investigate and use its reasonable endeavours to resolve any Calls which indicate that a Fault exists and is caused by the Maintained Software, and/or the Maintained Software does not conform with the specification of such software as set out in the Scope of Service. The Customer acknowledges that whilst Smart EPOS is responsible for maintaining the Maintained Software for the Term, it cannot guarantee that the supplier or developer of the Maintained Software will continue to support the Maintained Software, or any particular version of it, throughout the term of this Agreement.
(c)If, due to the actions of the supplier or developer of the Maintained Software, Smart EPOS is unable to actively support any element of Maintained Software during the Term Smart EPOS shall give all reasonable notice of such cessation to the Customer. Thereafter, Smart EPOS shall propose a solution to the customer in accordance with clause 6.2.6(d)
(d)On ceasing to support actively any element of Maintained Software, Smart EPOS shall, at its discretion, propose to the Customer:
(i)A fixed price quotation for upgrading to the latest Maintained Software release; and/or
(ii)A separate long-term upgrade for that element of Maintained Software and its associated hardware; and/or
(iii)Replacement software offering functionality not materially different from that element of the Maintained Software; and/or
(iv)A maintenance strategy for that element of the Maintained Software for the unexpired portion of this Agreement and shall state whether the Price is to be adjusted as a result and if so how and when any additional payment or rebate is to be made. Any such strategy will not guarantee the continued function of such element of software and Smart EPOS will accept no responsibility for the continued function of such Software or any loss that might result to the Customer due to such Software ceasing to function.
(e)If Smart EPOS makes a proposal to the Customer under the preceding sub-clause, the Customer shall respond within 28 days and if appropriate may select the alternative offered that it prefers. If the Customer fails to respond or declines the proposal then, subject to Clause 6.2.6(c), Smart EPOS shall have no further obligation to the Customer to the extent of the impact of the relevant Maintained Software on the Maintained Network or any part of it.
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Non-maintained Software
(f)The Maintained Network may depend on Non-maintained Software. If so, the Customer warrants that it is fit for its purpose and will operate as part of a system of which the Maintained Network forms part, and shall remain so for the Term.
(g)Where the operation of the Maintained Network depends either in whole or in part on Non-maintained Software, the Customer undertakes not to alter or upgrade the Non-maintained Software without Smart EPOS ´s prior written consent, which Smart EPOS shall not withhold unreasonably, and undertakes to put into effect Smart EPOS´s reasonable instructions for implementing the alterations or upgrades. In giving any consent Smart EPOS shall state whether the Price is to be adjusted as a result and if so how and when any additional payment or rebate is to be made.
(h)The Customer acknowledges that alterations and upgrades to Non-maintained Software may necessitate equivalent alterations or upgrades to all or any of the Maintained Software and/or Maintained Hardware to ensure the same level of service. The costs of the alterations and upgrades required shall be the sole responsibility of the Customer.
(i)If the Customer either does not comply with its obligations under Clause 6.2.6(g) or does not make or allow Smart EPOS to make the alterations or upgrades indicated in Clause 6.2.6(h), Smart EPOS shall not be liable under this or any other agreement or under statute or otherwise for Smart EPOS’s failure to provide the Services in accordance with this Agreement. In addition, Smart EPOS at its discretion, may:
(i)Terminate this Agreement after which Clauses 6.3.14(b) - 6.3.14(d) shall apply;
(ii)Continue to offer the System Maintenance under this Agreement but at such a reduced level as Smart EPOS decides; or
(iii)Adjust the Charges for maintaining the System Maintenance at the same level as provided for under this Agreement
(j)Without prejudice to Clauses 6.2.6(g) to 6.2.6(i), where pursuant to this Clause the Customer alters or upgrades the Non-maintained Software, it agrees to submit the Non-maintained Software at its own expense for appropriate testing by Smart EPOS.
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1.2.7Proactive Support Visits
(a)During each consecutive 12 month period of the System Maintenance, Smart EPOS 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 System Maintenance.
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1.2.8System Audit
(a) Smart EPOS will, as often as Smart EPOS thinks is necessary and (save in the event of an emergency) upon reasonable notice carry out a System Audit within Smart EPOS's Normal Working Hours to confirm that, in Smart EPOS's opinion, the Maintained Network is in reasonable operating condition.
1.2.9Service Exclusions and Additional Services
(a) Smart EPOS shall provide services that are not covered by the Charges only where the Customer delivers to Smart EPOS an order form signed by the Customer and Smart EPOS accepts the order in writing and/or performs the services so requested.
(b) Smart EPOS reserves the right to charge the Customer at its rate prevailing at the time the charge is incurred for any work done, parts supplied and costs and expenses suffered by Smart EPOS that are outside the Scope of the Service and not covered by the Charges, or, where applicable, to refuse the service requested.
(c)The System Maintenance does not extend to:
(i)Any Non-Maintained Hardware and or Non-Maintained Software and or any part of the Maintained Network which is in any way changed from that included in the Scope of Service;
(ii)Any part of the Maintained Network which was, in Smart EPOS's reasonable opinion, operating in an unstable or unsuitable manner prior to commencement of the System Maintenance;
(iii) Any work or site visit arising as a result of any breach by the Customer of any of its obligations under this Agreement;
(iv)where the circumstances leading to the Call are due to the modification, manipulation, alteration, or addition to or tampering with the Maintained Network or items used in connection with it other than by Smart EPOS and/or its subcontractors or without Smart EPOS‘s prior written consent
(v)Where the Call has arisen because of the Customer's failure to maintain environmental requirements notified in writing from time to time by Smart EPOS to the Customer
(vi)Any call that Smart EPOS, acting reasonably, considers unnecessary;
(vii)Where the Customer is requested but denies Smart EPOS remote diagnostic access to the Maintained Network;
(viii)Any work arising from any incident, wilful act or any error or omission in the operation of the Maintained Network or any other cause (except for fair wear and tear) which is not due to the neglect or default of Smart EPOS;
(ix)Any failure or defect caused by Non-Maintained Hardware and or Non-Maintained Software not covered by this Agreement;
(x)Failures or defects due to manufacture or design defects over which Smart EPOS has no control;
(xi)Refurbishment or repair of casing or outer surfaces;
(xii)Any work to accessories, alterations, attachments or any other equipment that is external to the Maintained Network, is not Non-Maintained Hardware and or Non-Maintained Software and is not identified within the Scope of Service;
(xiii)Reinstatement of customised versions of the standard desktop/operating system;
(xiv)Reinstatement of the Customer's software and data not identified within the Scope of Service;
(xv)Any consultancy, training for software or hardware Smart EPOS may provide;
(xvi)Integration of the Maintained Network or any part thereof with other systems;
(xvii)Cleansing of viruses and spy ware, or resolving the consequences of security breaches and incompatibilities in hardware and/or software;
(xviii)Upgrading the Operating Platform to be able to operate the Customer's selected software applications;
(xix)Consumable supplies or accessories such as magnetic media, batteries, print heads, toner cartridges, ink, paper, and any other items identified as consumable by the manufacturers of the constituent parts of the Maintained Network, unless listed in the Scope of Service;
(xx)Any equipment in respect of which a notice has been served by Smart EPOS under clauses 8.2.5, 8.2.6, 6.2.10 or 6.2.11;
(xxi)Any work arising by reason of any maintenance or repair work carried out in respect of the Maintained Network by a third party not previously approved by Smart EPOS;
(xxii)Where the circumstances leading to the Call are caused by force majeure;
(xxiii)Without prejudice to anything in this Clause 6.2.9, where the Customer is otherwise in breach of this Agreement.
1.2.10 Beyond Reasonable Repair
(a) Smart EPOS will give the Customer written notice if, in its reasonable opinion, the Maintained Network (or any part of it) is identified as being at the "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 Smart EPOS to provide the System Maintenance in respect of such Maintained Network will be suspended. If the Customer declines to have the Maintained Network overhauled or replaced at its expense within thirty days of such notification, Smart EPOS 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 load equipment relating the said equipment from the end of the notice period.
(b)The provisions of clause 6.2.10(a) will apply equally in respect of any software included within the Maintained Network which, in the reasonable opinion of Smart EPOS, is no longer economically viable to maintain or requires upgrading or updating.
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1.2.11 Pre Inspection
(a)Prior to commencement of the System Maintenance, Smart EPOS may during Normal Working Hours inspect the Maintained Network, or any part of it, at the Installation Address to confirm that it is, in Smart EPOS's reasonable opinion, in full working order in accordance with the manufacturer's and Smart EPOS’s requirements. If work is required to put the Maintained Network in such full working order Smart EPOS will notify the Customer accordingly. If the Customer declines to have such work carried out at its expense within thirty days of such notification, Smart EPOS may on written notice exclude such Maintained Network from System 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.
1.3General Provisions
The following terms and conditions apply to all Maintained Network sold or to be sold and/or Software licensed or to be licensed and/or System Maintenance provided or to be provided to the Customer.
1.3.1General
(a)These terms may only be amended, or varied with Smart EPOS's agreement in writing. The parties agree that this Agreement will prevail notwithstanding any conflicting or additional terms or any orders or other notifications submitted by the Customer.
(b)Words of a technical nature used in this Agreement will (unless inconsistent with the context) be construed in accordance with general trade use in the computer industry in the United Kingdom unless they are otherwise defined within this Agreement.
(c)Headings in this Agreement are for convenience only and have no effect on the interpretation.
(d)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 this Agreement or otherwise nor will any single or partial exercise thereof preclude any further or subsequent exercise.
1.3.2Specification
(a)The description of any Goods contained in any invoice, order form, descriptive matter, specifications, catalogue or advertising material published or issued by Smart EPOS is for identification only and the use of such description will not constitute a sale by description. Any typographical or other error or omission in any such literature or any other document issued or provided by Smart EPOS may be corrected by Smart EPOS without any liability on the part of Smart EPOS.
(b) Smart EPOS reserve the right to supply Goods which differ from the specifications agreed between the parties and/or to modify any specifications in respect of the System Maintenance provided that this does not materially affect the performance of the Goods or the System Maintenance.
1.3.3Price
(a)Unless otherwise stated in writing, quotations are valid for 30 days from the date of issue and are exclusive of VAT and any other relevant taxes which are payable by the Customer in addition.
(b)All waiting time spent by any employees or agents of Smart EPOS as a result of any delay, variation or failure by the Customer to comply with this Agreement will be payable by the Customer to Smart EPOS at Smart EPOS's then hourly rate.
1.3.4Payment
(a)In respect of the System Maintenance the Customer will pay the Charges to Smart EPOS on the date(s) set out in clause 3.2 Scope of Service.
(b)In respect of the sale of all other Goods and services:
(i)Payment will be made by the Customer on the date(s) agreed in writing between the Customer and Smart EPOS at the point of order for the Goods or the requirements for services in accordance with this Agreement.
(ii)Invoices for Goods will ordinarily be issued on delivery of the Goods. If the Goods are specific to the Customer or if the Customer fails to take delivery when required, Smart EPOS may invoice the Customer at any time after the Goods become available for delivery.
(iii) Smart EPOS may require the Customer at any time prior to delivery to pay a deposit to secure any order or part thereof.
(iv)Any quantity discount given by Smart EPOS at the point of order may be removed if the order quantity is subsequently reduced.
(v)If no payment date(s) has(have) been agreed in writing in accordance with clauses 6.3.4(a) or 6.3.4(b)(ii) above then payment by the Customer will be made within 14 days of the date of Smart EPOS's invoice.
(c)If any payments from the Customer under this Agreement are payable by instalments, the Customer will pay such instalments in advance, by standing order, direct debit or such other method as Smart EPOS may agree, at the intervals agreed in writing with Smart EPOS.
(d)If the Customer fails to make any payment due to Smart EPOS (whether under this Agreement or otherwise) on its due date the Smart EPOS may (without prejudice to any other remedy) cancel the Contract or suspend any further performance or any obligations by Smart EPOS to the Customer or appropriate any money received from the Customer against such sums as Smart EPOS may determine (notwithstanding any instructions from the Customer).
(e)All payments due to Smart EPOS under this Agreement will be paid in full without any set off, deduction, counterclaim or withholding of any sum for whatever reason.
(f) Smart EPOS reserves the right to charge interest on the amount of any delayed payment at the rate of 4% over the base rate of Barclays Bank Plc. from time to time on the outstanding amount until the outstanding payment has been made in full.
1.3.5Lease
(a)If any payments due to Smart EPOS in respect of the Goods or the System Maintenance is to be paid by a third party then the Customer agrees that immediately on delivery of the Goods the Customer will sign the acceptance note for the leasing company or other third party and will generally take all steps as may be necessary to ensure that payment is made to Smart EPOS for the Goods and/or the System Maintenance in accordance with this Agreement.
1.3.6 Smart EPOS Employees
(a)The Customer will take all such steps as may be necessary to ensure the safety and welfare of any of Smart EPOS‘s Personnel who visit any premises of or on behalf of the Customer;
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1.3.7Indemnities
(a)The Customer will fully indemnify and hold harmless Smart EPOS from and against any claim or loss, damage or injury to any person or property occasioned by or arising directly or indirectly from any negligence or misuse of the Goods or the Maintained Network or any other breach of this Agreement by or on behalf of the Customer.
(b)Where Smart EPOS do anything for the Customer on the Customer’s premises or premises under the control of the Customer, the Customer agrees to indemnify Smart EPOS and keep it indemnified against any loss, damage claim or expense arising out of the physical injury of or death of any of its Personnel arising in any way from Smart EPOS’s performance of its obligations under this Agreement and arising by reason of the provision of defective equipment, the Customer’s failure to provide a safe system of work or otherwise by reason of any negligent act or default on the Customer’s part or on the part of the Customer’s Personnel or other person on your premises.
1.3.8Liability
(a)Subject as expressly provided in this Agreement and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law, but nothing in this Agreement will affect the liability of Smart EPOS for any fraudulence misrepresentation.
(b)Where the Goods are sold under a consumer transaction (as defined by the Consumer Transaction (restrictions on Statement) Order 1976) the statutory rights of the Customer are not affected by this Agreement.
(c)The Customer accepts that in respect of the sale of the Goods, whilst Smart EPOS will endeavour to use its expertise and experience to advise the Customer, Smart EPOS is acting as a supplier only and it is the Customer's responsibility to ensure that the Goods will be suitable for its requirements and the Customer acknowledges that prior to the Contract it has fully and accurately advised Smart EPOS of its requirements, both present and anticipated, in respect of the Goods.
(d)If Smart EPOS is unable, other than through the act of default of the Customer, within a reasonable time to repair or replace any defective Goods in accordance with the Warranty set out in this Agreement and where such Goods are unusable due to such defect then the Customer's only remedy is to reject such Goods and on their return to Smart EPOS's premises the Customer is entitled to recover the price and paid for such Goods provided (or a proportion of the price paid) that the Customer notified such defect in accordance with this Agreement.
(e)Without prejudice to clause 6.3.8(g), if Smart EPOS fails to provide System Maintenance in accordance with its obligations hereunder, the total liability of Smart EPOS in any one year for any Loss suffered by the Customer as a result of such failure will not exceed the Charges paid by the Customer in such year for the System Maintenance in question.
(f)Except in the case of death or personal injury caused by Smart EPOS‘s negligence, or liability for defective products under the Consumer Protection Act 1987, Smart EPOS will not have any Liability to the Customer for loss of profit or any indirect, special or consequential Loss of the Customer arising out of or in connection with the provision of any goods or services or any delay in providing or failure to provide any goods or services even if Smart EPOS had been advised of the possibility of such potential loss.
(g)Except in the case of death or personal injury caused by Smart EPOS’s negligence, or liability for defective products under the Consumer Protection Act 1987, in no event shall Smart EPOS’s Liability in respect of any Loss to the Customer exceed £50,000.00.
(h)Except in the case of death or personal injury caused by Smart EPOS‘s negligence, or liability for defective products under the Consumer Protection Act 1987, no action regardless of form may be brought by the Customer more than 12 months after the cause of action has accrued.
(i) Smart EPOS will have no liability under this Agreement or otherwise to the Customer arising out of:
(i)any loss or corruption of any documents, data, memory erasure of media stored on disk, whether total or partial howsoever arising by reason (in whole or in part) of the Customer's failure to maintain adequate back-up copies of all of its operating system software, application software, data files and other documents.
(ii)any loss or corruption of any documents, data, memory erasure of media stored on disk, whether total or partial howsoever arising, including but not limited to loss which may occur, whilst installation, service or maintenance work is being carried out by or on behalf of Smart EPOS in accordance with this Agreement or any other reason;
(iii) Any act or omission of any third party telecommunication provider, or fault or failure of their equipment (including any prevention of any remote servicing facilities in respect of the equipment);
and if any damage to any of the program or data files of the Customer occurs the Smart EPOS’s responsibility will be confined to assisting the Customer to restore the latest backup copy and installing application software made available on site by the Customer. If on site assistance is required to reconstruct the files then Smart EPOS will charge the Customer for the cost of such assistance at Smart EPOS‘s then current rates.
1.3.9Warranties and Third Party Rights
(a)The Customer warrants and represents that the use by Smart EPOS of any data, materials or equipment supplied by the Customer of use by Smart EPOS in the provision of the System Maintenance, will not infringe the intellectual property rights of any third party and the Customer will fully indemnify Smart EPOS in this respect.
(b)If Smart EPOS have agreed that it will do anything, pursuant to this Agreement, on the instruction of the Customer, and as a result Smart EPOS are in breach of any rights of anyone else (or anyone else threatens Smart EPOS with proceedings for breach of their rights) the Customer agrees to indemnify Smart EPOS against any loss it may suffer, including legal costs, in defending or resisting the proceedings or claim, or settling the proceedings or claim on legal advice. The Customer’s obligations under this clause 6.3.9 will remain after the rest of this Agreement have terminated, whatever the reason for termination.
(c)If the Customer comes across any circumstances which may lead to a claim under clause 6.3.9(a) above, it agrees agree to inform Smart EPOS about them as soon as possible.
(d)If, as a result of such a claim or threat, Smart EPOS decides that it is no longer commercially sensible to proceed with the System Maintenance, Smart EPOS may terminate this agreement.
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1.3.10 INTELLECTUAL PROPERTY
(a) Smart EPOS and the Customer agree and acknowledge that:
(i)Any Intellectual Property created by Smart EPOS during the course of the provision of the System Maintenance will vest in Smart EPOS absolutely and where applicable will be licensed to the Customer on a non-transferable, non-exclusive basis.
(ii)The Customer must ensure that the licenses for the Software which Smart EPOS uses, modifies or has access to in providing the System Maintenance permits the activities set out in the Scope of Service and requested by the Customer from time to time. Any licence or sub-licence which requires Smart EPOS to be a party to it in order to provide the System Maintenance must be granted or procured by the Customer at the Customer’s expense.
(iii)The Customer will indemnify Smart EPOS against any action brought by a third party for any failure to comply with sub-clause 6.3.10(a)(ii) The Customer’s obligations under this clause 8.3.10(a)(iii) will remain after the rest of this Agreement have terminated, whatever the reason for termination.
(b)All copyright and other Intellectual Property Rights in Smart EPOS Documentation shall remain the sole and exclusive property of Smart EPOS. The Customer shall have no rights in such, except that the Customer will have a non-transferable, non-exclusive licence to use such Smart EPOS Documentation as may be reasonably necessary to perform its obligations and exercise its rights under this Agreement. The Customer will not modify or change or translate any of the Smart EPOS Documentation or any part thereof without Smart EPOS’s prior written consent and will not make any copies of the Smart EPOS Documentation except as may be reasonably necessary for back up purposes. The Customer agrees that it will not alter or obscure any 'confidential information'(or equivalent), copyright or trade mark notices which appear on the Smart EPOS Documentation. The Customer will ensure that any copies of the Smart EPOS Documentation made by it will contain the same 'confidential information'(or equivalent), copyright and trade mark notices as appear on the original.
(c)Except as specifically authorised in this Agreement, neither Smart EPOS nor the Customer shall use the others’ Intellectual Property Rights without the prior written consent of the other.
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1.3.11 Confidentiality
(a)Except as expressly provided, neither party may at any time whether during or after the expiry of this Agreement use or disclose the other party's Confidential Information and the Customer will take all reasonable steps to ensure that its Personnel are bound by the same obligations and that such obligations will continue beyond the termination of employment with the Customer.
1.3.12 Performance
(a) Smart EPOS will not be liable for any failure or delay in complying with this Agreement if the failure of delay was due to force majeure, including any circumstances whatsoever beyond the reasonable control of Smart EPOS in which event Smart EPOS will as soon as reasonably practicable notify the Customer of the nature and extent of the circumstances in question. If the force majeure continues for more than 30 days then Smart EPOS may cancel this Contract (or any part thereof) without liability to the Customer.
1.3.13 Sub-Contracts
(a) Smart EPOS may assign, sub- contract or otherwise transfer the benefit of, and/or its obligations under this Contract to any third party at any time.
(b)Where Smart EPOS have sub-contracted any services to a third party specified by the Customer, Smart EPOS shall not be liable for any non-performance of that third party’s obligations, and for the purposes of this Agreement, any delay or hindrance caused by or attributable to that third party shall be considered to have been caused by the Customer.
(c)The Customer acknowledges that this Contract is personal to the Customer and that it may not assign or in any way make over to any third party, whether in whole or in part, the benefit of, and/or its obligations under this Contract without the prior written authority of Smart EPOS and on such terms as Smart EPOS may reasonably require.
(d)Save where expressly stated in this Agreement, no person will become entitled to enforce any of its provisions of this Agreement who would not have been so entitled but for the provisions of the Contract (Rights of Third Parties) Act 1999, the provisions of which do not apply to this Agreement.
1.3.14Termination
(a) Smart EPOS may without prejudice to any other remedy available to it at any time by giving written notice terminate or suspend this Contract or such part of it as Smart EPOS may elect (including stopping any Goods in transit) if:
(i)The Customer commits any continuing or material breach of this Agreement and if the breach is capable of remedy, is not remedied within thirty days of a written notice detailing the breach;
(ii)A resolution is passed or an order is made for the liquidation of or the winding up of the Customer (save for the purpose of a bona fide reconstruction or amalgamation);
(iii)The Customer becomes subject to an administration order, a receiver or manager or administrative receiver is appointed over the Customer's property or assets;
(iv)The Customer suffers execution or distress or takes or suffers any similar action in consequence of a debt;
(v)The Customer is insolvent or would be taken as insolvent under section123 Insolvency Act 1986;
(vi)The Customer is dissolved or otherwise threatens or ceases to carry on business or a substantial part of it;
(vii)In the case of a sole trader or partnership anything analogous to any of the above occurs.
(b)On termination of this Contract for any reason the Customer will return or delete any of Smart EPOS Confidential information and return to Smart EPOS all property of Smart EPOS under the Customer's possession or control.
(c)On termination of the Contract any licence to use software granted by Smart EPOS will immediately terminate and the Customer will return to Smart EPOS any such software and all copies thereof and will not use or permit the use of any such software. The customer acknowledges and agrees that Smart EPOS will be entitled to remove such software from all operating systems of the Customer whether by means of remote access or otherwise. The Customer will not do or omit to do anything which might prevent or hinder such removal,
(d)If the Customer terminates this Contract (or Smart EPOS terminates by reason of any acts or omissions of the Customer) then:
(i)in respect of any Goods supplied but not paid for such a termination can only be made with Smart EPOS‘s written consent and on terms that the Customer will indemnify Smart EPOS in full against all loss (including loss of profit) costs, charges and expenses incurred by Smart EPOS as a result of such termination; and
(ii)in respect of the System Maintenance if the termination occurs prior to the end of the Initial Term, Smart EPOS may without prejudice to any other remedies available to it demand and receive from the Customer an early termination charge. This charge will be calculated to recover such costs as Smart EPOS has reasonably incurred in equipping itself to deliver the System Maintenance and which have not been fully recovered by Smart EPOS from the Charges paid by the Customer at the date of termination.
1.3.15 Data Protection
(a)Each party will ensure that in the performance of its obligations under this Agreement it will at all times comply with the Data Protection Act 1998
(b)The Customer consents to the processing by Smart EPOS of the entire Customer's personal data (as the term "personal data" is defined in the Data Protection Act 1998) for all purposes connected with this Agreement.
(c)The Customer acknowledges that any data transmitted over the Internet cannot be guaranteed to be free from the risk of interception even if transmitted in encrypted form and that Smart EPOS has no liability for the loss, corruption or interception of any such data
1.3.16 Non Solicitation
(a)The Customer acknowledges the investment made by Smart EPOS in the training of Smart EPOS‘s Personnel and the commercial interest which Smart EPOS has in retaining their services.
(b)The Customer agrees that if any of the Smart EPOS Personnel who have provided all or any part of any services for or on behalf of Smart EPOS to the Customer within 3 months of leaving the employment or engagement of Smart EPOS accepts an Engagement with the Customer then the Customer will pay to Smart EPOS such sum as represents 30% of the anticipated annual salary or other sums to be paid by the Customer to such person(s) within the first year of such Engagement.
(c)For the purpose of this clause 6.3.16 references to the Customer will include any person or entity to whom such person(s) is introduced (directly or indirectly) by the Customer.
1.3.17 Notices
(a)All notices under this Agreement must be in writing and will be effective only if given by either party to the other party at their last known principal place of business or such other address as that party has nominated, in writing, for that purpose.
1.3.18B Law and Jurisdiction
(a)This Agreement will be governed by and construed in accordance with English Law and the English Courts will have jurisdiction to hear all disputes arising in connection with this Agreement.
(b)The invalidity or unenforceability for whatever reason will not prejudice the continuation in force of the remainder of this Agreement and if any part of this Agreement is held by a Court or competent authority to be illegal or ineffective it or they will be replaced with such legal and effective terms that most closely approach the ineffective terms.
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1.3.19 Entire Agreement
(a)These terms and the Scope of Service contain the entire agreement between the parties with respect to their subject matter and supersede all previous written and oral agreements and understandings between parties. The Customer acknowledges that in entering into the Contract it does not rely on any representation, warranty, agreement or other provision except as expressly set out in this Agreement and that all conditions, warranties or other terms implied by statue or common law are excluded to the fullest extent permitted by law, but nothing in this Agreement will affect the liability of Smart EPOS for any fraudulent misrepresentation.
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1.3.20 Definitions
In these terms and conditions, unless the context otherwise requires, the following words have the following meanings:
(a)Call: Communications received by Smart EPOS from the Customer reporting a defect or malfunction in the Maintained Network.
(b)Charges: The sums payable by the Customer to Smart EPOS for the System Maintenance, as set out in the Scope of Service.
(c)Confidential Information: Any trade secrets or confidential or proprietary information of either party, including this Agreement, but excluding any information:
(i)In the public domain otherwise than by a breach of the Contract;
(ii)Which, prior to disclosure, was already known by the recipient;
(iii)That the other party develops independently or for to any information that is disclosed to it under the provisions of the Contract; or
(iv)Which is subsequently disclosed to the recipient by a third party at liberty to disclose it.
(d)Contract: The contract between the Customer and Smart EPOS for the sale of Goods and/or System Maintenance in accordance with this Agreement.
(e)Customer: The person who accepts Smart EPOS’s written quotation for the sale of the Goods and/or the supply of the System Maintenance or whose written order in respect thereof is accepted by Smart EPOS as more greatly particularised detailed in clause 3.
(f)Customer Contacts: where applicable, the individual(s) named by the Customer for the purposes of liaising with Smart EPOS and facilitating access to the Customer's premises whose details are provided to Smart EPOS in clause 3.
(g)Documentation: all drawings, designs, diagrams, specifications, manuals, reports and other information and documentation (whether in paper, electronic or other format) supplied to the Customer by Smart EPOS for the purposes of this Agreement.
(h)Engagement: The employment, hire or other use, directly or indirectly and whether as an employee or on a self-employed basis.
(i)Fault: a failure of a part and/or the whole of the Maintained Network resulting in materially decreased operating performance.
(j)Goods: any computer hardware or software or other similar or associated equipment, items or materials supplied to the Customer by Smart EPOS, including, but not limited to, those items of software, equipment and other peripherals detailed in clause Error! Reference source not found. of this Agreement.
(k)Initial Term: The period of time referred to in clause 6.2.2 for which the System Maintenance is to be provided as specified in the Scope of Service.
(l)Installation Address: The address specified in the Scope of Service at which the Maintained Network is located or such other address as may be agreed in writing by Smart EPOS.
(m)Intellectual Property Rights: all inventions, patents, trademarks, designs, design rights, trade secrets, copyright, database rights, trade, business or company names and other similar rights, whether registered, applied for or unregistered anywhere in the world, whether existing at the date of or during the term of this Agreement; and "Intellectual Property" shall have the corresponding meaning;
(n)Liability : Any liability arising by reason of any representation (unless fraudulent), or any breach of any implied warranty, conditions or other term or any duty at common law, or under any statute, or under any express term of this Contract.
(o)Loss: In relation to the Customer means loss of profit (or any other Joss), damages, costs or other compensation and any legal or other expenses awarded against or incurred by or paid or agreed to by paid in settlement of any claim by the Customer, howsoever arising and whether by reason of negligence of Smart EPOS, its employees, its agents or otherwise.
(p)Maintained Hardware: all hardware to be maintained by Smart EPOS pursuant to this Agreement and which is listed in clause 4 – the Scope of Service;
(q)Maintained Network: the Maintained Hardware and the Maintained Software;
(r)Maintained Software: all software (including Third Party Software) to be maintained by Smart EPOS pursuant to this Agreement and which is listed in clause
4 – the Scope of Service;
(s)Non-maintained Hardware: all hardware belonging to/used by the Customer which is not Maintained Hardware;
(t)Non-maintained Software: all software belonging to, licensed to and/or used by the Customer which is not Maintained Software;
(u)Normal Working Hours: 08.45 to 17.00 Monday to Friday but excluding bank or statutory holidays.
(v)Operating Platform: The complete configuration of hardware, ancillaries/accessories and operating system for an item of the Maintained Network.
(w)Personnel: Any employee, agent consultant and/or sub- contractor of the party concerned
(x)Renewed Term: any period of time subsequent to the Initial Term where Smart EPOS provides Systems Maintenance under the terms of this Agreement as provided in clause 6.2.2(a);
(y)Scheduled Service Hours: The times during which Smart EPOS will endeavour to provide the System Maintenance as specified on the Scope of Service.
(z)Scope of Service: the description of the Systems Maintenance to be provided under this Agreement and as set out in clause 4 including details of the Maintained Network, response times and other information in respect of the System Maintenance.
(aa)Software: the Maintained Software and the Non-maintained Software or either of them;
(bb)System Maintenance: the services provided by Smart EPOS in maintaining the Maintained Network as set out in the Scope of Service.
(cc)System Audit: Means an inspection of the Maintained Network or part thereof but does not include repair or replacement.
(dd)Term: the Initial Term and any Renewal Term;
(ee)Third Party Software: Software developed and licensed by a third party, for which Smart EPOS have agreed to provide support, as detailed in the Scope of Service.
Registered office
Smart Epos Limited, Unit 3 Ryelands Business Park, Ryelands Lane, WR9 0PT.
T: 01299 400549 Reg No: 09292144
E: accounts@smartepos.co.uk VAT No: GB 2022094 6
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