1.1 In these Conditions, the following definitions apply:
|Business Day||a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;|
|Company website||the domain name www.europlusdirect.com or such other domain name as is used by the Company from time to time;|
|Conditions||these terms and conditions as amended from time to time;|
|Contract||the contract between the Supplier and the Customer whereby the Supplier will purchase the Services on behalf of the Customer in accordance with these Conditions;|
|Customer||the person or firm for whom the Supplier purchases the Services;|
|IBM Conditions||the IBM ServicePac/ServiceSuite Maintenance Terms and Conditions;|
|Order||the Customer’s order for the Services, as set out in the written acceptance by the Supplier of the Customers request for the Services;|
|Registration||the registration of the ServicePac by the Supplier on the IBM Online ServicePac Registration System (and “Register” and “Registered” shall have the associated meanings);|
|ServicePac||is the name of the maintenance cover package provided by IBM for single machines at a fixed price with fixed service levels;|
|Services||the ongoing IBM system maintenance provided by IBM to the Customer pursuant to either the ServicePac or ServiceSuite products;|
|ServiceSuite||is the name of the maintenance cover package provided by IBM where different services are required to those provided under ServicePac; and|
|Supplier||Europlus Direct Limited (registered in England and Wales with company number 05206766).|
1.2 In these conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes and emails
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 A quotation for the Services given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 10 (ten) Business Days from its date of issue. Any quote shall be subject to: exchange rate fluctuations following the end of this period; and IBM price changes.
3.1 The Customer appoints the Supplier as its agent to purchase the Services.
3.2 The Customer acknowledges and agrees that the Services are provided directly by IBM or a third party IBM approved service partner and that the Supplier shall have no responsibility or liability, whether direct or indirectly, in relation to the provision of the Services. Where a third party IBM approved service partner is to provide the services, the Supplier shall inform the customer of this in the quotation.
4.1 The Supplier shall agree to the IBM Conditions on behalf of the Customer on the purchase of the Services.
4.2 The Customer warrants to the Supplier that it has read and understood the IBM Conditions and agrees to be bound by the IBM Conditions.
5.1 On receipt of confirmation of its purchase of the ServicePac (and receipt of the associated documentation) from IBM, the Supplier, or the Customer, as applicable, shall Register ServicePac with IBM’s online registration system or as instructed to do so by IBM. If a Customer requests to Register the ServicePac independently, then Registration must be processed in accordance with the IBM Conditions.
5.2 The Customer acknowledges and accepts that the ServicePac Services will not be activated until Registration is complete.
5.3 Notwithstanding clause 5.2, the Customer acknowledges and accepts that the ServiceSuite Services shall not be activated until the relevant contract has been signed by the Customer and countersigned by a representative of IBM.
5.4 IBM does not offer Services in certain remote or island locations. Customers should contact the Supplier in advance of purchasing the Services to ensure they are available in the Customer’s area. Customers acknowledge and accept that the Supplier may not be able to purchase all Services offered by IBM in all locations.
5.5 Time of delivery is not of the essence. The Supplier shall not be liable for any delay in procurement of the Services that is caused by:
5.5.2 any distribution or business partner of the Supplier;
5.5.3 a Force Majeure Event; or
5.5.4 the Customer’s failure to provide the Supplier with adequate instructions relevant to the supply of the Services.
5.6 If the Supplier fails to procure all or part of the Services, it shall refund such proportion of the price to the Customer as is proportionate to the amount of the Services which the Supplier has failed to procure.
6.1 For Customers purchasing Services other than through the website, the price shall be as per the quotation, subject to clause 2.5. For Customers purchasing Services through the Company’s website the price shall be as detailed at the checkout of the Company’s website, subject to clause 2.5.
6.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Services to reflect any increase in the cost of the Services that is due to:
6.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour);
6.2.2 any request by the Customer to change quantities or types of Services ordered, or the Specification; or
6.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
6.3 The price of the Services is exclusive of amounts in respect of value added tax (“VAT”) or equivalent tax which, where applicable, shall be payable by the Customer in addition to the basic price of the Services.
6.4 Subject to clause 6.5, the Customer undertakes to pay the price of the Services as soon as possible after Order. The Customer acknowledges and accepts that the Supplier will not purchase the Services until it has received payment in full, cleared funds from the Customer.
6.5 Notwithstanding the terms of clause 6.4, if the Customer has a credit agreement with the Supplier, the Supplier will purchase any Services on behalf of the Customer prior to receiving payment in full, cleared funds from the Customer. The Customer acknowledges and accepts that after the Supplier has placed any such order, it is not possible for the Supplier to cancel the order and therefore the Customer undertakes to pay the Supplier in full for the Services ordered on its behalf by the Supplier irrespective of whether the Customer no longer needs the Services requested.
6.6 No refund shall be payable to the Customer in any circumstances after the Services have been purchased by the Supplier.
6.7 Payment shall be made to the bank account nominated in writing by the Supplier.
6.8 In the event that the Supplier receives payment from a Customer for a Service that is not available, upon becoming aware that the Service is unavailable, the Supplier shall return the payment in full to the Customer.
6.9 Both parties shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and neither party shall be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.
7.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
7.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
7.1.2 fraud or fraudulent misrepresentation; or
7.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
7.2 Subject to clause 7.1:
7.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Services; or
7.2.2 any loss or damage, whether direct or indirect arising out of or in connection with the supply, non supply or delay in the supply of the Services; and
7.2.3 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed 25 (twenty five) per cent of the price paid for the Services by the Customer.
7.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.4 This clause 7 shall survive termination of the contract.
8.1 Save for ongoing obligations, this Contract shall terminate when the Services have been Registered by the Supplier and confirmed to the Customer in writing.
8.2 Without prejudice to any other rights or remedies which the parties may have, the Supplier may terminate the Contract without liability to the Customer on giving the Customer not less than 2 (two) months’ written notice.
8.3 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving notice to the other if:
8.3.1 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 (thirty) days of that party being notified in writing of the breach; or
8.3.2 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 5 (five) Business Days after being notified in writing to make such payment; or
8.3.3 the other party summons a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to any voluntary arrangement, is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, has a receiver, manager or administrative receiver appointed over any of its assets, undertakings or income, has passed a resolution for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation previously approved in writing by the party serving notice), is subject to a petition presented to any Court for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation previously approved in writing by the party serving notice), has a provisional liquidator appointed, has a proposal made for a scheme of arrangement under Part 26 (arrangements and reconstructions) Companies Act 2006, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of intention to appoint an administrator given by any person or is the subject of a notice to strike off the register at Companies House.
8.4 The parties acknowledge and agree that any breach of clauses 8.3.1 to 8.3.3 shall constitute a material breach for the purposes of this clause.
9.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including without limitation strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
10.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
10.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.1 Any notices must be in writing and may be delivered by hand, first class post, Special Delivery post, fax or email, addressed to the recipient at its registered office or to any other address, fax number or email address as notified in writing to the sender by the other party.
12.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
12.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.1 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for or to bind, the other party in any way.
16.1 Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
17.1 The Contract (and any non-contractual obligations relating to it) shall be subject to English law and the exclusive jurisdiction of the English courts.