Managed Service Terms and Conditions
1 Definitions and interpretation
Charges: all of the following: (a) any Service Charges; (b) any interest due by the Customer to the Supplier under the Contract; and (c) any other sums payable under, or in connection with, the Contract.
Contract: the agreement under which the Supplier will provide the service to the Customer consisting of these Terms and Conditions and any electronic confirmation to proceed and/or Purchase Order.
Customer: the person/company who has requested the Managed Service.
Goods: any products or goods supplied as part of the Managed Service, including any machines, articles, tools, equipment, devices supplied by the Supplier to the Customer.
Service Charges: The Supplier’s charging rate for the Managed service provided and any additional goods which is current from time to time during the Service Period;
Service Period: the period commencing/Finishing as per the email confirmation/Purchase order provided by the Customer to the Supplier.
Damaged/Loss of Goods: Goods must be returned by the Customer in good working order and condition and in a condition that they were in prior to the service. Any damaged or Loss of items will be chargeable at the standard rate.
Liability: any liability whatsoever, the consequences arising from the liability, any direct, indirect or consequential loss, damage, costs or expenses resulting from the liability, whether the liability arises as a result of breach of the Contract, breach of statutory duty, liability in tort or otherwise, and even if the liability results from a party's negligence or from negligence for which that party would otherwise be liable;
Supplier: dBD Communications Limited, a company registered in England and Wales with company number 4431602 (VAT number GB-795861859) with a registered office at 2 Nobel Square, Burnt Mills Industrial Estate, Basildon, Essex SS13 1LS.
Trigger Event: any of those events listed in clause 11.1.
Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to a statute or statutory provision is a reference to it as amended, extended or re‐enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to under that statute or statutory provision.
2 Ownership of Goods Supplied Under this Contract
2.1 Ownership of Goods supplied during this service remains at all times with the Supplier. The Customer has no right, title or interest in the supplied Goods.
2.2 The Customer must not deal with the ownership, or any interest in the Goods. This includes selling, assigning, mortgaging, pledging, charging, securing, withholding, exerting any right to withhold, disposing of and/or lending.3 Customer owned dBD Equipment
3.1 dBD personnel are happy to service any dBD duplexed communication systems owned by the Customer. This service is free of charge and subject to personnel having the time available
4 Customer's obligations in respect of Service/ Goods
4.1 It is the Customer’s responsibility to ensure that they have adequate insurance to cover the Goods. Any goods which have been damaged or lost whilst supplied under this service will be chargeable to the Customer.
4.2 Risk in the Goods will not pass back to the Supplier from the Customer until the Goods are back in the physical possession of the appointed dBD Personnel and have been signed in on the dBD Check Sheet
4.3 The customer has a duty of care to ensure the safety and welfare of dBD Personnel at all times, including but not limited to the provision of welfare facilities eg: Toilets, wash stations and clean drinking water. There should also be adequate parking in a safe location for a vehicle of up to 7m long.
5 Care of Goods provided by Managed service
The Customer shall:
5.1.1 not remove any labels from and/or interfere with the Goods, their working mechanisms or any other parts of them and shall take reasonable care of the Goods and only use them for their proper purpose in a safe and correct manner in accordance with any operating and/or safety instructions provided or supplied to the Customer;
5.1.2 notify the Supplier immediately after any breakdown, loss and/or damage to the Goods
5.1.3 take adequate and proper measures to protect the Goods from theft, damage and/or other risks;
5.1.4 not continue to use Goods where they have been damaged and will notify the Supplier immediately if the Goods are involved in an accident resulting in damage to the Goods, other property and/or injury to any person; and
5.1.5 where the Goods require fuel, oil and/or electricity ensure that the proper type and/or voltage is used and that, where appropriate, the Goods are properly installed by a qualified and competent person.
6.1 All goods supplied are tested prior to deployment. Any breakdowns should be notified to the onsite personnel immediately and the onsite personnel will rectify as soon as reasonably practicable
6.2 The Customer shall be responsible for all expenses, loss (including loss of Hire Charges) and/or damage suffered by the Supplier arising from any breakdown of the Goods due to the Customer’s negligence, breach of Contract, misdirection and/or misuse of the Goods.
6.3 The Supplier shall at its own cost carry out all routine maintenance and repairs to the Goods during the Service Period and all repairs which are required due to fair wear and tear and/or an inherent fault in the Goods. The Customer will be responsible for the cost of all repairs necessary to Goods during the Service Period which arise other than as a result of fair wear and tear, an inherent fault and/or the negligence of the Supplier while carrying out routine maintenance and/or repairs.
6.4 The Customer must not repair or attempt to repair the Goods.
7 Delays, loss or damage
7.1 If the Goods are returned in a damaged, permanently marked, contaminated and/or defective state except where due to fair wear and tear and/or an inherent fault in the Goods the Customer shall be liable to pay the Supplier for the cost of replacing the goods.
7.2 The Customer will pay to the Supplier the replacement cost of any Goods which are lost, stolen and/or damaged beyond economic repair during the Managed Service Period.
8.1 Managed Service Shift – Cancellation notice needs to be given at least 48 hours prior to shift starting. If notice is not given then the shift will still be chargeable
8.2 Equipment – cancellation notice needs to be given 72 hours prior to shift starting. If notice is not given then the goods will still be chargeable
8.3 All seasonal work is non-cancellable non-refundable once written confirmation is received. This is to ensure the commitment of personnel during the festive period. Seasonal 23-December to 5th Jan Orders are not guaranteed until an order acknowledgement has been returned. Orders are accepted on a first come basis and cannot been verified verbally, full documentation is required to secure the activity and or assets.
9.1 The warranty clause shall apply to Managed Service Goods for the duration of the service, the Goods will conform in all material respects with their description, be of satisfactory quality, and be reasonably fit for the purposes for which products of that kind are commonly supplied.
10.1 Terms of payment are strictly pro-forma unless a credit account has been established with us. Where a credit account has been established with us, payment must be made for each Managed Service, cancellation (as per section 8) and any lost/damaged goods within 30 (thirty) calendar days from end of Managed Service in GBP£ as specified on the invoice.
10.2 The Buyer must raise any dispute relating to an invoice within 5 (five) working days of the date of invoice. If the Buyer’s dispute is held valid, dBD shall credit the Buyer the disputed amount.
10.3 We reserve the right at our discretion to refuse to establish credit account facilities, and/or to terminate any such credit account facilities already in existence.
10.4 If the Buyer fails to pay any sum due to dBD by its due date, the Buyer shall pay to dBD, in addition to such sum or sums due, interest thereon at the prevailing UK Statutory rate for interest on late payment calculated on a daily basis together with any additional costs and expenses incurred by dBD and dBD may at its sole discretion and without liability postpone or cancel all or part of the Contract or any other contract between the Buyer and dBD without prejudice to any other right or remedy which dBD may have against the Buyer in respect of such default
10.5 Prices exclude VAT which shall be added by the Supplier. However, if the rate of VAT changes between the date of the order and the date of delivery, the Supplier will, if permitted by law, adjust the VAT the Customer pays, unless the Customer has already paid for the Goods in full before the change in VAT takes effect.
11.1 The Customer's credit limit shall be as specified by the Supplier
11.2 The Supplier may, in its absolute discretion, reduce the Customer's credit limit
11.3 Where Services are supplied in excess of this limit (for any reason) at the request of the Customer, the Customer's employees, staff, servants or agents, any other person, purporting to act on behalf of the Customer, or any person authorised by the Customer to make use of the account, then the Customer will be held responsible for the entire account, including the excess. In such circumstances, the Customer shall reduce the Customer's balance to within the credit limit by the end of the calendar month during which the credit limit was exceeded.
11.4 If payment is not made and the Customer goes over their credit limit then a stop may be put onto the Customer’s account until payment is received.
12 Breach of the Contract
12.1 If the Customer:
12.1.1 fails to make any payment to the Supplier when due (whether under this Contract or otherwise);
12.1.2 commits a material breach of the Contract and, where the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
12.1.3 persistently breaches the terms of this Contract;
12.1.4 causes or allows to be caused the loss of, or damage to, the Goods;
12.1.5 provides incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract;
12.1.6 pledges, charges or creates any form of security over any Goods or proposes to compound with its creditors, creates a trust deed for its creditors, applies for an interim moratorium in respect of claims and/or proceedings, of if any distress/diligence, execution or other legal process is levied on any property of the Customer, or the Customer has a Bankruptcy Petition/Petition for Sequestration presented against it or the Customer takes or suffers any similar action in any jurisdiction;
12.1.7 being a company, ceases or threatens to cease to carry on business, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver or in the Republic of Ireland an examiner is appointed over all or any of its assets, any attachment order/arrestment is made against the Customer, any distress/diligence, execution or other legal process is levied on any property of the Customer or the Customer takes or suffers any similar action in any jurisdiction;
12.1.8 appears reasonably to the Supplier due to the Customer’s credit rating to be financially unable to meet its obligations under the Contract; and/or
12.1.9 appears reasonably to the Supplier to be about to suffer any of the above events; each, a Trigger Event, then the Supplier shall have the rights set out in clause 12.2.
12.2 The Customer acknowledges and agrees that if a Trigger Event has occurred then the following shall apply:
12.2.1 The Supplier may, without Liability, withhold the performance of any Services and cease any Services in progress under this and/or any other Contract with the Customer;
12.2.2 The Supplier may immediately cancel, terminate and/or suspend, in whole or in part, and without Liability, the Contract and/or any other contract with the Customer;
12.3 If any Trigger Event occurs, the Customer will be liable for the costs arising from loss or damage to Goods including but not limited to the costs of replacement, repair and/or recovery.
13.1 Subject to clause 13.2, a person who is not a party to the Contract shall not have any rights under it. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.2 Clause 13.1 shall not apply to any finance company with whom the Supplier has an outstanding finance agreement relating to the Managed Service Goods. Such finance company shall, subject to the Supplier’s consent, have the right to enforce this Contract as if they were the Supplier.
13.3 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non‐contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and shall be subject to the exclusive jurisdiction of the English Courts.
13.4 If the Supplier fails, at any time during the term of the Contract, to insist upon strict performance of any of the Customer's obligations under the Contract, or if the Supplier fail to exercise any of the rights or remedies to which the Supplier is entitled under the contract, this will not constitute a waiver of such rights or remedies and will not relieve the Customer from compliance with such obligations.
13.5 A waiver by the Supplier of any default will not constitute a waiver of any subsequent default.
13.6 No waiver by the Supplier of any of the Terms and Conditions will be effective unless it is expressly stated to be a waiver and is communicated to the Customer in writing
13.7 The Customer shall not transfer, assign, charge or otherwise dispose of a Contract, or any of the Customer's rights or obligations arising under it, without the Supplier's prior written consent.
13.8 The Supplier may transfer, assign, charge, or otherwise dispose of a Contract, or any of its rights or obligations arising under it, at any time during the term of the Contract.
13.9 The Supplier may subcontract its obligations under the Contract but the Supplier shall remain liable for the performance of its obligations to the same extent as it would have been but for the subcontracting. For example, the Supplier may hire to the Customer Goods which the Supplier has itself hired from a third party but the Supplier shall remain liable (to the extent set out in the Contract) if those Goods are faulty.
13.10 The Terms and Conditions constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.11 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Terms and Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation, or negligent misstatement, based on any statement in this agreement.
13.12 If any provision of this Contract is held by any competent authority to be unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
14 Force Majeure
14.1 For the purposes of this Agreement "Force Majeure" means, in relation to either party, any circumstances beyond the reasonable control of that party including, without limitation, any strike, lock-out or other form of industrial action termination, civil disturbance, war, risk, fire, explosion, storms, flood, earthquake, epidemic or other natural physical disaster;
14.2 If any Force Majeure occurs in relation to either party which affects or may affect the performance of any of its obligations under this Agreement, it shall forthwith notify the other party as to the nature and extent of the circumstances in question
14.3 Neither party shall be deemed to be in breach of this Agreement, or shall otherwise be liable to other, by reason of any delay in performance, or the non-performance, of any of its obligations under, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party at least 48 hours prior to the Force Majeure event, If it is within 48 hours then the Customer will liable for paying the supplier any costs that have been incurred.
14.4 If the performance by either party of any of its obligations under this Agreement is prevented or delayed by Force Majeure for a continuous period in excess of 6 months, the parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable
15.1 If the Managed Service Period has a fixed duration, subject to the provisions of clause 12, neither the Customer nor the Supplier shall be entitled to terminate the Contract before the expiry of that fixed period unless agreed in writing with the other party.