(a) In these terms and conditions, "Acora" means Acora Limited and any other company within the Acora group of companies with whom an Order is placed and the “Customer" means the person or company or its agent who places an order (“Order”) under these terms and conditions with Acora for the supply of any goods or services (“Products”) by Acora. The “Parties” shall refer to Acora and the Customer and the “Services” are those items of Products other than equipment, hardware and software.
(b) These terms and conditions together with the details in the Order constitute the whole agreement between Acora and the Customer for the sale and/or supply by Acora of the relevant Products under the Order (this “Agreement”) and supersede any previous arrangement, understanding or agreement between them relating to the Products, including but without limitation any Customer purchase order terms issued in relation to the Products, which shall not apply to this Agreement.
(c) The Products are supplied by Acora upon and subject to the express terms and conditions contained herein and all other conditions, warranties and representations, express or implied and statutory or otherwise, except as to title (where applicable), are, to the fullest extent permitted by law, hereby excluded from this Agreement.
(d) No variation, cancellation or waiver of this Agreement shall be valid unless agreed in writing by Acora and signed by a registered director of Acora.
(e) The headings are inserted for convenience only and shall not affect the construction of these terms and conditions.
CANCELLATION OF ORDERS AND TERMINATION
(a) Acora reserves the right, without prejudice to any other remedy, to cancel any uncompleted Order, terminate this Agreement and/or to suspend delivery or provisions of the Products in the event of any of the Customer's commitments and obligations under this Agreement with Acora not being met (including but not limited to any refusal or failure by the Customer to make payment of any sums due to Acora) or in the event of the insolvency of the Customer. If an Order is cancelled and/or the Agreement terminated by Acora in the aforementioned circumstances, or is cancelled by a Customer, then the Customer shall indemnify Acora against all loss, costs (including the cost of all labour and materials used and overheads incurred), damages, charges and expenses arising out of the Order and the cancellation thereof and/or the termination of this Agreement, Acora giving credit for the value of any such materials sold or utilised for purposes of this Agreement.
(b) Cancellation of any professional services, MIS or other service day(s) by the Customer must be confirmed in writing to the relevant ACORA contact and a charge will be made based on the following scale:
Written Notice Cancellation Charge
16 working days 0%
11-15 working days 25%
6-10 working days 50%
1-5 working days 100%
(c) On termination of this Agreement or cancellation of an Order for any reason, all rights of the Customer under this Agreement shall cease, the Customer shall immediately pay all sums payable to Acora under this Agreement and outstanding prior to the date of termination and each Party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party.
(d) The accrued rights of the Parties as at termination or cancellation, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
PRICES, COSTS AND EXPENSES
(a) Whilst every endeavour has been made to ensure the accuracy of the prices quoted to the Customer by Acora no responsibility can be accepted for any errors or omissions. All pricing is net of VAT and is valid for seven days or as stated and is subject to change without notice.
(b) Save where and to the extent specified otherwise in the Order, all pricing excludes any additional third party products and services that may be required and, unless otherwise specified in writing by Acora, also exclude delivery charges.
(c)The Products and pricing are based on the information provided to Acora by the Customer and are set on a time and materials basis. Acora believes the estimates to be correct with the information it has at the date of quote. If however, further service time and/or days are required to cover additional work, Acora and the Customer will agree to these costs before proceeding. Any further days will be charged at the agreed rate.
(d)In the event of any suspension of work and/or delay in delivery of Products through the Customer's instructions or lack of instructions or required assistance Acora reserves the right to recover any extra expense and costs thereby incurred by Acora from the Customer and these shall be payable by the Customer upon receipt of Acora’s invoice for such expenses and costs. Reasonable out of pocket expenses including any travel expenses to the Customer’s premises are payable in addition to the cost of the consultancy and/or training. Mileage will be charged at Acora’s then standard rates..
(e) The final charges set out in the Order and/or its acceptance by Acora will be payable for the Products in accordance with such Order and this Agreement.
(a) All accounts and charges are payable within 30 days of invoice, unless otherwise agreed in writing by Acora and payment on time of all charges due to Acora under this Agreement is an essential condition of this Agreement. If Acora has not received payment of the charges or any other sums due under this Agreement from the Customer by the due date, and without prejudice to any other rights of Acora, interest shall accrue on such overdue amounts at the rate of four per cent (4%) over the base lending rate of Lloyds Banking Group Plc, commencing on the due date and continuing until fully paid. In the event that the Customer delays, fails, refuses and/or cancels payment of any of the charge (or any other sums due to Acora by the Customer under this Agreement), Acora shall have the right to suspend supply of the Products.
(b) Acora is able to accept payment by cheque, BACS or by lease arrangement, (please see your account manager for further details). Where the Products are Services the Customer may also be permitted by Acora to pay for such Products by Direct Debit subject to Acora’s written approval (payments will be in advance according to a payment plan as approved by Acora).
(c) If, in Acora's judgement, the Customer's financial condition does not justify the terms of payment agreed with Acora, Acora may cancel any unfulfilled Orders unless the Customer shall, upon written notice, immediately pay for any Products delivered or shall pay in advance for all Products ordered but not delivered or both at Acora's option.
PROVISION OF PRODUCTS AND SERVICES
(a) Acora shall perform the Services with all reasonable skill and care consistent with the standards and practices to be expected of a reputable provider of IT services.
(b) Acora shall only provide additional services or products to the Customer where it agrees with the Customer to do so in writing. Any such additional services or products will be charged to and paid for by the Customer in addition to the original charges and in accordance with Acora’s standard rates in force from time to time and/or as agreed in writing by the Parties prior to provision of any such additional services and/or products.
(c) The Customer acknowledges and agrees that the provision of the Products is dependent upon the co-operation and assistance of the Customer and that, in the event of any delays in the Customer’s provision of such assistance as is reasonably necessary and/or as has been agreed in writing by the Parties, Acora may adjust any timetable or delivery schedule set out in this Agreement as reasonably necessary, including but without limitation, the date on which the Services are to commence or be completed.
(d) Acora will comply with the Customer’s policies that are provided by the Customer in writing to Acora in advance and agreed in writing by Acora, including but without limitation those that apply to persons who are allowed access to the applicable Customer’s locations and any health and safety requirements in relation to such persons/access, such policies not to restrict Acora’s ability to provide the Services in accordance with this Agreement.
(e) In order to ensure Acora is able to provide the Products in accordance with this Agreement, the Customer shall provide Acora with: all necessary co-operation in relation to the subject matter of the Agreement including but not limited to such personnel assistance as may be reasonably requested by Acora from time to time;
all necessary access to such premises, information and Customer’s equipment as may be reasonably required by Acora to perform the Services;
security access information and software interfaces to the Customer’s data and other business applications in order for Acora to perform the Services;
details of any and all restrictions or requirements for the conduct of Acora’s personnel while on the Customer’s premises, including but not limited to any health and safety requirements; and
anything else that the Parties agree in writing as being necessary to perform or enable the performance of the Services.
(f) The Customer will further ensure that Acora’s personnel who attend the Customer’s Locations shall be provided with safe and secure working conditions and environment and in compliance with all health and safety laws and regulations (or relevant equivalent).
(g) There shall be deemed to be no failure on the part of Acora to supply the Products (including the Services) where Acora can reasonably establish that such failure to provide the Services was as a result of matters beyond Acora’s reasonable control, including but without limitation any cause attributable to acts, omissions and/or failings of the Customer or other third party.
DELIVERY, RISK AND WARRANTY
(a) Any times for dispatch and/or delivery of the Products are to be treated as estimates only. Whilst every reasonable effort will be made to meet these estimated dispatch and/or delivery times, Acora shall not be liable in any manner whatsoever for failure to dispatch and/or deliver the Products within the time quoted.
(b) The risk of loss and/or damage to Products supplied by Acora shall pass to the Customer upon delivery of such Products to the Customer or other person to whom Acora has been authorised by the Customer to deliver the Products whether expressly or by implication. Acora shall not be liable for the care, condition or safety of the Products thereafter (and accordingly the Customer should insure the Products against such risks as may be commercially prudent) from such time.
(c) Any damage to Products in transit should be notified to the carrier and Acora within two days of receipt by the Customer of the Products and all packing and contents are to be held by the Customer for inspection. If the Products are not received by the Customer within seven days of the date of invoice the Customer should immediately inform the carrier and Acora.
(d) In the case of defects or faulty workmanship in Products or any parts thereof supplied but not manufactured by Acora, the Customer shall not be entitled to receive any greater benefit hereunder than shall be received by Acora under any guarantee or warranty given to the Customer by the manufacturers or suppliers thereof.
TITLE IN THE PRODUCTS
(a) Notwithstanding the provisions of clause 6(b) above, the ownership of the Products (where such ownership originally rests with Acora) shall remain with Acora, (which reserves the right to dispose of them) until payment in full for all Products under the relevant contract between the Customer and Acora has been received by it in accordance with the relevant terms
(b) If payment for the Products is overdue in whole or in part and/or immediately upon the commencement of any act or proceeding in which the Customer's solvency is involved, Acora may (without prejudice to any of its other rights and remedies) recover or resell the Products or any of them and may enter upon the Customer's premises by its servants or agents for that purpose. If the Products are incorporated in or used as materials for other goods, before such payment the ownership in the whole of such other goods shall be and remain with Acora until such payment has been made for the Products or the other goods have been sold as aforesaid and all Acora's rights hereunder in the manner shall extend to those other goods.
(c) Where and to the extent that the Products comprise any computer software applications or programs (“Software”), the Customer acknowledges and agrees that (i) no title in the relevant Software will pass to the Customer from Acora under the Order and (ii) it is the Customer’s sole responsibility to ensure that it is and will remain properly and legally licensed to use the Software and any other software used with the Software by the relevant owner of the rights in and to the Software and/or such other software.
(d) No intellectual property rights of any kind will pass to the Customer under any Order.
(a) Acora shall effect and maintain with a reputable insurance company a policy or policies providing an adequate level of cover for professional indemnity insurance and public liability insurance and the Customer shall effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred including death or personal injury, loss of or damage to property in relation to Acora’s staff or contractors while on the Customer’s premises and in relation to the Customer’s and/or Acora’s equipment used at to the Customer’s locations.
Each Party shall give the other Party, within 5 Working Days of a written request, copies of all insurance policies referred to in this Clause or a broker’s verification of insurance to demonstrate that the appropriate cover is in place, together with receipts or other evidence of payment of the latest premiums due under those policies.
INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges and agrees that the ownership and rights in all of the Intellectual Property Rights of Acora (including but without limitation those in and relating to the Services) and any third party remain with Acora and such third party respectively and that no Intellectual Property Rights of Acora and/or any third party shall pass to the Customer under this Agreement in any way or for any purpose.
(a) For the purposes of this Agreement “Confidential Information” means all business, commercial, personnel and other confidential information relating to the business and operation of one Party (the “Disclosing Party”), its employees, transactions or finances, whether specifically identified as confidential by such Party or not which is provided to the other Party (the “Receiving Party”).
(b)Each Party agrees that the Confidential Information of the other Party will be used solely for the purposes of this Agreement, that they will not disclose or divulge or allow to be disclosed or divulged such Confidential Information of the other except on a need-to-know basis to those employees, contractors, representatives and advisers of the Receiving Party for the purposes of this Agreement or to persons previously approved in writing by the Disclosing Party.
(c)These confidentiality undertakings, restrictions and obligations imposed shall not apply to information which:
(i) is or becomes publicly known other than through any act or omission of the Receiving Party;
(ii) was in the Receiving Party’s lawful possession before its disclosure by the Disclosing Party;
(iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure;
(iv) is independently developed by the Receiving Party, which independent development can be shown by written evidence; and/or
(v) accordance with any applicable law, legislation, or regulation.
(d)The Receiving Party agrees it will return or, at the Disclosing Party’s request, destroy, all Confidential Information of the Disclosing Party and any copies (including any extracts thereof and any computer or other records) promptly at the earlier of the Disclosing Party’s request at any time or the expiration or earlier termination of this Agreement.
(e)These confidentiality provisions shall survive termination of this Agreement, however arising and shall continue for a period of three years from the date the Services have been completed.
Acora shall not be responsible for non-performances in whole or in part of its obligations nor under any liability to the Customer in respect thereof if such non-performance is due to acts of God, war, insurrection, Government regulations, embargoes, strikes, labour, disputes, illness, flood, fire, tempest or any other cause beyond the control of Acora.
TERMINATION BY GOVERNMENT
Notwithstanding the provisions of Clause 14(a) if Products are to be used in the performance of a government contract, or sub-contract and the government terminates such contract in whole or in part, the Order placed on Acora in respect thereof may be cancelled in the same proportion as such government contract, and the liability of the Customer for termination allowance shall be determined by the then applicable regulations of the government pertaining to termination of the contract.
LIABILITY, CONSEQUENTIAL LOSS AND DAMAGE
(a) Except as expressly and specifically provided in this Agreement the Customer assumes sole responsibility for results obtained from the use by the Customer of the Services including any results obtained through the use of software and the Services provided as part of the Services, and for conclusions drawn from such use. ADA shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to ADA by the Customer in connection with the Services, or any actions taken by ADA at the Customer’s direction.
(b) Nothing in this Agreement excludes the liability of either Party for death or personal injury caused by such Party’s negligence; or for fraud or fraudulent misrepresentation.
(c) Acora shall not be liable to the Customer for any loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising.
(d) The liability of Acora to the Customer in relation to Products that are equipment/goods (including but not limited hardware and software) is limited to enforcement of the manufacturer’s product warranties relating to such Products.
(e) Acora’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the charges payable under this Agreement.
(f) Save as herein expressly provided Acora shall not be liable for any loss or damage of whatsoever nature or to whomsoever caused arising out of the use of Products supplied by it. The Customer shall indemnify Acora against all claims made against Acora by any third party in respect thereof.
BRIBERY ACT 2010
Acora shall maintain adequate procedures under the Bribery Act 2010 and shall not engage in any activity, practice or conduct which would constitute an offence under that Act. Acora shall impose equivalent obligations on any person associated with Acora in connection with this Agreement. Breach of this clause shall be deemed a material breach of this Agreement.
(a) If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
(c) Unless otherwise expressly stated, nothing in these terms and conditions shall create any rights or any other benefits whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour of any person other than the Customer and Acora.
(d) Acora shall have the right to, at any time, set off any of its liability to the Customer against any liability of the Customer to it,whether under the Order or otherwise. The Customer shall have no right of set off in relation to sums owed and obligations due to Acora.
(e) The Customer may not assign, transfer, charge, or deal in any other manner with all or any of its rights or obligations under this Agreement.
(f) This Agreement shall be construed and operate in accordance with English Law and shall be subject to the exclusive jurisdiction of the courts of England.