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Cornerstone Sage Solutions

Terms and Conditions

TERMS AND CONDITIONS OF CORNERSTONE BUSINESS SOLUTIONS LIMITED, DEFINITIONS

In these terms and conditions, unless the context otherwise requires, the following words shall have the following meanings:

Call: Communication received by the Company from the Customer reporting a

defect or malfunction in the Equipment.

Charges: The sums payable by the Customer to the Company for the Service, as set out in the Scope of Service.

Company: Cornerstone Business Solutions Limited.

Confidential Information: Any trade secrets or confidential or proprietary information of either party, including this Agreement but excluding any information in the public domain otherwise than a breach of this Agreement which, prior to disclosure, was already known by the recipient; that the other party develops independently of or to any information that is disclosed to it under the provisions of this Agreement; or which is subsequently disclosed to the recipient by a third party at liberty to disclose it.

Engagement: The employment, hire or other use, directly or indirectly and

whether as an employee or on a self employed basis.

Equipment: All or part of the network, hardware, software and Third Party

Software as specified or identified in the Scope of Service.

Initial Term: The fixed period for which the Service is to be provided as specified in the Scope of Service.

Installation Address: The address specified in the Scope of Service at which the Equipment is located.

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 Agreement. Loss: In relation to the Customer means loss of profit (or any other loss), damages, costs or other compensation and any legal or other expenses awarded against or incurred by or paid or agreed to be paid in settlement of any claim by the Customer, howsoever arising and whether by reason of negligence of the Company, its employees, its agents or otherwise.

Normal Working Hours: As specified on your scope of Service agreement.

Operating Platform: The complete configuration of hardware, ancillaries/accessories and operating system for an item of Equipment.

Personnel: Any employee, agent, consultant and sub-contractor of the party concerned.

Scheduled Service Hours: The times during which the Company will endeavor to provide the Service as specified in the Scope of Service.

The Service: The provision of a repair service for the Equipment together with proactive support visits as set out in the Scope of Service.

Scope of Service: The Schedule signed by the Customer setting out details of the Equipment, response times and other information in respect of this Agreement.

System Audit: Means an inspection of the Equipment or part thereof but does not include repair or replacement.

This Agreement: This Agreement and the Scope of Service. Third Party Software: Software developed and licensed by a third party, for whom the Company have agreed to provide support, as detailed in the Scope of Service.

GENERAL. 1.1 This Agreement may only be amended, modified, varied or supplemented with the Company’s agreement in writing.

1.2 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.

1.3 Headings in this Agreement are for convenience only and have no effect on the interpretation.

1.4 Failure by either party to exercise or enforce any rights, or the giving of any forbearance, delay or indulgence, will not be construed as a waiver of its rights under this Agreement or otherwise.

2. TERM 2.1 This Agreement starts on the date set out in the Scope of Service and, subject to clause 15, will continue unless and until either party serves on the other three months prior written notice of termination, which may only be served after the Initial term has expired.

3 THE COMPANY’S OBLIGATIONS;- 3.1 The Company will use its reasonable endeavors’ to respond to a valid Call within the response time set out in the Scope of Service and will provide the Service in accordance with the terms of this agreement.

3.2 The Company will use its reasonable endeavors’ to rectify defects or malfunctions in the Equipment on the telephone or by use of remote access where provided by the Customer.

3.3 If a defect or malfunction in the Equipment cannot be resolved on the telephone or by remote access, the Company will use its reasonable endeavors’ to visit the Installation Address within the response times set out in the Scope of Service.

3.4 When carrying out work in accordance with this Agreement, the Company will use its reasonable endeavors’ to return the Equipment to service and, subject to the terms of this Agreement, reinstate the Customer's applications.

3.5 The Company may at its discretion provide a permanent replacement part, either new or refurbished, and on exchange that part becomes the property of the Customer and the faulty part replaced becomes the property of the Company.

3.6 The Company may repair the Equipment away from the Installation Address when it considers it necessary to do so.

3.7 The Company may at its discretion, lend the Customer temporary replacement equipment (as compatible as may be available) while repairs are carried out .Equipment loaned to the Customer remains the Company's property and be returned to the Company on demand. The Customer is responsible for the Equipment and will indemnify the Company in respect of any loss or damage to that equipment.

3.8 The Company 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.

3.9 If the Customer requests the Company to carry out any Service outside the Scheduled Service Hours, the Company will use its reasonable endeavors’ to comply with this request but may charge the Customer for such Service at the Company's then current rates.

3.10 Where the Company is required to carry out or does carry out work that is subsequently found to be outside this Agreement, the Company will be entitled to charge for that work at the Company's then current rates.

3.11 The time taken the Company to respond to a call will only be measured during the Scheduled Service Hours.

4. PREVENTION OR DELAY PERFORMANCE;-

4.1 If the performance of any part of the Service is prevented, delayed or in any way interfered with by force majeure, including any circumstances whatsoever beyond the reasonable control of the Company, the Company will as soon as reasonably practicable notify the Customer of the nature and extent of the circumstances in question.

4.2 The Company will not be deemed to be in breach of this Agreement to the extent that any such breach is due to any force majeure. If the force majeure continues for more than 30 days then the Company may cancel this Agreement without liability to the Customer.

4. CUSTOMER OBLIGATIONS

5.1 The Customer will keep the Equipment in the environmental conditions recommended by the Equipment manufacturer and ensure that the external surfaces, cables and fittings of the Equipment are kept clean and in good condition.

5.2 The Customer will ensure that the Equipment is only used by properly trained staff in accordance with the manufacturer's user instructions, current computing practice and instructions issued by the Company from time to time.

5.3 The Customer will ensure that only personnel authorised by the Company adjust, modify, configure; maintain, repair, replace or remove any part of the Equipment.

5.4 The Customer will maintain adequate records of the use, maintenance and malfunction of the Equipment and will provide the Company with such information and assistance concerning the Equipment, its application, use, location and environment as the Company may reasonably require to enable it to carry out the Service.

5.5 The Customer will immediately notify the Company if there is any failure of the Equipment and will allow the Company full and free access to the Equipment and all documentation, software, & services necessary for the provision of the Service.

5.6 The Customer will ensure that relevant trained and experienced staff are available when required by and to provide the Company with information required to diagnose and/or repair the Equipment.

5.7 Where the Company provides remote diagnostic services in respect of the Equipment, the Customer will put and keep in place a remote access link to the Equipment which is acceptable to the Company.

5.8 The Customer must tell the Company in writing immediately that the Equipment or any part of it is changed.

5.9 The Customer will notify the Company of change in the location of any part of the Equipment. Whilst any Equipment is being moved, all the Company’s obligations to provide the Service will be suspended. The Service will reinstate following re-installation of the Equipment provided that the Equipment has not been damaged or affected during the move.

5.10 The Customer may request the Company to carry out services outside the Scope of Service. If the Company agrees to do so, the Customer will pay for such services at the Company's then current rates.

5.11 Unless specifically included in the Scope of Service, the Customer is responsible for the cost of any Third Party Software upgrades which the Company advise are required during the period of this Agreement.

5.12 It is the Customer's sole responsibility, in a manner acceptable to the Company, to 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 the Company when required.

5.13 The Customer undertakes to put and keep in place adequate security measures to protect the Equipment and any other software or date from viruses, harmful code or unauthorised access.

5.14 The Customer will take all such steps as may be necessary to ensure that the safety of any of the Company's representatives who visit any premises of the Customer.

5.15 The Customer will fully indemnify and hold harmless the Company from and against any claim for loss, damage or injury to any person or property occasioned by or arising directly or indirectly from any negligence or misuse of the Equipment or any other breach of this Agreement by or on behalf of the Customer.

6. CUSTOMER SUPPORT VISITS

6.1 During each consecutive 12 month period of this Agreement the Company 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 Agreement.

7. CONDITION CHECKS.

7.1 The Company will, as often as it thinks necessary, carry out an inspection of the Equipment within the Company's Normal working Hours to confirm that, in the Company's opinion the Equipment is in reasonable operating condition.

8. EXCLUSIONS AND LIMITATIONS.

8.1 The Service does not extend to:

8.1.1 Any Equipment not specified or included in the Scope of Service.

8.1.2 Any equipment which was, in the Company's reasonable opinion, operating in an unstable or unsuitable manner prior to the commencement of the Service;

8.13 Any work arising as a result of any breach by the Customer of any of its obligations under this Agreement.

8.1.4 Any work arising from any incident, willful act or any error or omission in the operation of the Equipment or any other cause (except for wear and tear) which is not due to the neglect or default of the Company;

8.1.5 Any failure or defect caused by hardware or software not covered by this Agreement;

8.1.6 Failures or defects due to manufacture or design defects over which the Company has no control;

8.1.7 Refurbishment or repair of casings or outer surfaces;

8.1.8 Any work to accessories, alterations or any other equipment that is external to the Equipment not identified within the Scope of Service;

8.1.9 Reinstatement of customised versions of the standard desktop/operating system;

8.1.10 Reinstatement of the Customer's software and data not identified within the Scope of Service;

8.1.11 Any consultancy, training or software or hardware the Company may provide;

8.1.12 Integration of the Equipment or any part thereof with other systems;

8.1.13 Cleansing of viruses and spyware, resolving the consequences of security breaches and incompatibilities in hardware and/or software;

8.1.14 Upgrading the Operating Platform to be able to operate the Customer's selected software applications;

8.1.15 Consumable supplies or accessories such as magnetic media, batteries, print heads, toner cartridges, ink, paper and any other items identified as consumable by the Equipment manufacturer, unless listed in the Scope of Service;

8.1.16 Any Equipment in respect of which a notice has been served by the Company under clause 9 or clause 14.1

 

8.2 Without prejudice to the generality of clause 8.3 the Company. will have no liability under this Agreement or otherwise to the Customer arising out of;

8.2.1 Any loss or corruption of any data 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 documentation;

8.2.2 Any loss or corruption of any data, memory erasure of media stored on disk, whether total or partial howsoever arising, including but not limited to loss which may occur, whilst service and maintenance work is being carried out by or on behalf of the Company on the Equipment in accordance with this Agreement or any other reason;

8.2.3 Any act or omission of any third party telecommunication provider or fault or failure of their equipment (including any prevention of any remote servicing facility in respect of the Equipment);

8.2.4 Any claim arising under this Agreement unless the Company has received written notice of the claim within 30 days of the date of the act or omission giving rise to the claim or if later, 30 days from the date the Customer ought reasonably to have become aware of the circumstances giving rise to the claim.

8.3 The Company will have no 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 (except in respect of death or personal injury resulting from negligence) and the total Liability of the Company for any Loss of the Customer so arising in any year of this Agreement in respect of any one event or series of events will not exceed the Charges paid by the Customer under this Agreement for that  year.

8.4 If any damage to any of the program or date files of the Customer occurs then the Company's responsibility will be confined to assisting the Customer to restore the latest backup copy and installing supported application software made available on site by the Customer. If on site assistance is required to reconstruct the files, then the Company will charge the Customer for the cost of such assistance at the Company's then current rates.

9. BEYOND REASONABLE REPAIR

9.1 The Company will give the Customer written notice, if in its reasonable opinion, the Equipment (or any part of it) is identified as "end of life", becomes beyond reasonable repair or spare parts become not readily available, or if faults and/or its condition are such that overhaul or replacement is necessary at which point any obligations of the Company to provide the Service in respect of such equipment will be suspended. IF the Customer declines to have the Equipment overhauled or replaced at its expense within 30 days of such notification, the Company may on written notice exclude such equipment from this Agreement and refund to the Customer by way of a credit note a fair proportion of any Charges which have been paid by the Customer in respect of such equipment from the end of the notice period and will remove any loan equipment relating to the said equipment from the end of the notice period. 9.2 The provisions of clause 9.1 will apply equally in respect of any software included within the Equipment which, in the reasonable opinion of the Company, is no longer economically viable to maintain, or requires upgrading or updating.

1O. DATA PROTECTION

10.1 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.

10.2 The Customer consents to the processing by the Company of all the Customer's personal data (as the term "personal data" is defined in the Data Protection Act 1998) to provide the service.

10.3 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 the Company has no liability for the loss, corruption or interception of such data.

11. PAYMENT

11.1 Unless otherwise specified in the Scope of Service, the Customer will pay the Charges to the Company on the date of the Scope of Service and each anniversary thereof. If the Scope of Service expressly permits payment by installments, the Customer will pay the Charges by equal, installments payable in advance by standing order direct debit or such other method as the Company may agree, at the intervals, set out in the Scope of Service.

11.2 If any services are provided to the Customer by the Company which are subject to an additional charge under this Agreement then payment will be made by the Customer within 30 days after the date of the Company's Invoice.

11.3 All payments due to the Company under this Agreement will be paid in full without any set off, deduction, counterclaim or withholding of any sum for whatever reason.

11.4 All charges and other sums payable by the Customer under this Agreement are exclusive of VAT and any other relevant taxes which are payable by the Customer in addition.

11.5 The Company 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 per calendar month or part thereof on the outstanding amount until payment has been made in full.

11.6 If the Customer fails to pay any sums due under this Agreement on their due date then the Company may (without prejudice to any other remedy) suspend the performance of the Service until payment has been made in full.

12. WARRANTIES 12.1 The Customer warrants and represents that the use by the Company of any data, materials or equipment supplied by the Customer for use by the Company in the provision of the Service will not infringe the intellection property rights of any third party and the Customer will fully indemnify the Company in this respect.

12.2 The Customer acknowledges that in entering into this Agreement 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 statute or common law are excluded to the fullest extent permitted by law but nothing in this Agreement will affect the liability of the Company for any fraudulent misrepresentation.

13. ASSIGNMENT AND DELEGATION

13.1 The Company may assign, sub-contract or otherwise transfer the benefit of, and/or its obligations under, this Agreement to any person at any time.

13.2 The Customer acknowledges that this Agreement 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 Agreement without the prior written authority of the Company & on such terms as the Company may reasonably require.

13.3 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 Contracts (Rights of Third Parties) Act 1999, the provisions of which do not apply to this Agreement.

14. COMPANYS INSPECTION BEFORE COMMENCENT OF SERVICE.

Prior to commencement of the Service the Company reserves the right during Normal Working Hours to inspect the Equipment or any part of it, at the Installation Address to confirm that it is, in the Company's reasonable opinion, in full working order in accordance with the manufacturer's requirements. If work is required to put the Equipment in such full working order the Company will notify the Customer accordingly. If the Customer declines to have such work carried out at its expense within three days of such notification, the Company may on written notice exclude such equipment from this Agreement 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.

15 TERMINATION

15.1 Either party may terminate this Agreement immediately by written notice if:

15.1.1 The other commits any continuing or material breach of this Agreement and if the breach is capable of remedy, is not remedied within 30 days of a written notice detailing the breach;

15.1.2 A resolution is passed or an order is made for the liquidation of or the winding up of the other (save for the purpose of a bona fide reconstruction or amalgamation);

15.1.3 The other becomes subject to an administration order, a receiver or administrative receiver is appointed over the other's property or assets;

15.1.4 The other is insolvent or would be taken as insolvent under section 123 Insolvency Act 1986;

15.1.5 The other is dissolved or otherwise threatens or ceases to carry on business;

15.1.6 In the case of a sole trader or partnership anything analogous to any of the above occurs.

15.2 On termination of this Agreement for any reason the Customer will return or delete any of the Company's confidential information and return to the Company all property of the Company under the Customer's possession or control.

15.31f the Customer terminates this Agreement (or the Company terminates by reason of any acts or omissions of the Customer) prior to the end of the Initial Term, the Company 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 based on the premium multiplied by the outstanding term as shown. (Month - Quarter – Annum) at the time of termination as detailed overleaf. This figure will be reduced by 25% for payment within 14 days.

16. APPLICABLE LAW

16.1 All notices under this Agreement must be in writing. Any notice given under this Agreement 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.

17 LAW AND JURISDICTION

17.1 This Agreement will be governed by and construed in accordance with English Law and the Courts of England will have jurisdiction to hear all disputes arising in connection with this Agreement.

17.2 If any provision of this Agreement is held by a Court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provision in question will not be affected.

          CORNERSTONE BUSINESS SOLUTIONS LTD

                    MAP House, Stockton TS183TG

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