Nubix Limited Standard Terms and Conditions
Notwithstanding anything to the contrary these Terms and Conditions contain the only terms upon which Nubix will provide Goods and carry out Services and shall not be varied unless expressly agreed in writing, signed by a Director of Nubix.
Each of the provisions of these Terms and Conditions is distinct and severable from the others and in the event that any one or more of the provisions contained in these Terms and Conditions shall for any reason be or become unenforceable, illegal or otherwise invalid in any respect (whether wholly or in part), such unenforceability, illegality or invalidity shall not affect any other provisions of these Terms and Conditions.
Nubix reserves the right to sub-contract any of the Services to be provided under the Terms and Conditions and to assign agreements in whole or in part to a third party.
2. CANCELLATION OR VARIATION OF CONTRACTS
No cancellation, suspension or variation of any contracts made by the Customer should be effective unless in writing and until accepted in writing by Nubix and such acceptance will be given only subject to adequate compensation for any extra cost or any liability suffered by Nubix in connection with the contract.
Nubix reserves the right to refuse to accept any cancellation of a contract and in particular, no cancellation will be accepted on Contract for Goods to be made to special requirements or not normally stocked by Nubix, if the supply or obtaining by Nubix of such Goods is in progress or has been completed upon the receipt of the Customer's notice of cancellation.
Cancelled orders will be subjected to a minimum handling fee of 15% of the total value of Goods returned. No software packages will be accepted for credit if their seals are not intact.
3. TERMS OF PAYMENT
The Customer shall pay within 21 days of the date of the invoice (s). Nubix reserves the right to charge interest on a daily basis on outstanding sums at the rate of 4% above HSBC Bank plc's base rate per annum as published from time to time.
4. NUBIX WARRANTY
All Goods supplied by Nubix are covered by normal manufacturer's warranties to be free from defects in workmanship and materials.
Any Dead on Arrival warranty claims for Goods must be in writing and received by Nubix within the manufacturer's specified time limits. Nubix will only accept a return within such specified time limits. Nubix will then repair or replace the goods or refund the purchase price at its sole option.
In the case of failure of Goods in service, the conditions and terms of warranty extended to the Customer by the manufacturer shall apply, unless and at the discretion of Nubix these terms are improved upon.
This warranty shall not apply if the goods have been worked upon, altered or damaged in any way by the Customer or its employees or agents, or if it has not been used in accordance with the manufacturer's instructions.
Nubix warrants that Services shall be supplied and rendered with all due skill, care and diligence by appropriately experienced, qualified and trained personnel in accordance with good industry practice.
5. LIMITATION OF LIABILITY
Nubix shall not be liable for any loss or damage sustained or incurred by the Customer or any third party (including without limitation any loss of use of the Equipment or loss of or spoiling of the Software or the Customer's programs or data) resulting from any breakdown of or fault in the Equipment or the Software unless such breakdown or fault is caused by the negligence or willful misconduct of Nubix, its employees, agents or sub-contractors or except to the extent that such loss or damage arises from any unreasonable delay by Nubix in providing the Services.
Except in respect of injury to or death of any person caused by Nubix's negligence the liability of Nubix under these Terms and Conditions in respect of any one event or series of events arising out of a single cause shall not exceed £1,000,000 (One Million Pounds).
Notwithstanding anything contained in these Terms and Conditions Nubix shall not be liable to the Customer for any loss of profits, contracts, business, revenue or goodwill or indirect, special or consequential loss arising under or in connection with these Terms and Conditions, whether arising from negligence, breach of contract or otherwise.
Except as expressly provided in these Terms and Conditions, all conditions, warranties or representations, express or implied, statutory or otherwise, relating to the provision of the Services by Nubix to the Customer, are hereby excluded.
6. HARDWARE AND SOFTWARE SUPPORT CONTRACTS – AGREEMENT PERIOD
Agreements shall remain in force for the Initial Period and shall be automatically renewed thereafter for periods of one year (each such period being referred to as a "Renewal Period"), unless terminated in part or full by either party giving written notice to the other at least 60 days before the date of expiry of the Initial Period or any Renewal Period.
7. HARDWARE AND SOFTWARE SUPPORT CONTRACTS - CHARGES
Nubix may vary the Contract Charge or any component of it, upon giving notice in writing prior to the expiry of the Initial Period or any Renewal Period, as appropriate. Such variation will take effect upon the expiry of the Initial Period or the relevant Renewal Period, save that the Customer shall have the right to terminate an Agreement by giving notice in writing to Nubix within 30 days of receipt of the notice of variation in the Contract Charge from Nubix.
Nubix shall have the right to charge the Customer at the applicable Hourly Rate in the following circumstances;
For services undertaken which are outside the Contract specification;
Where Nubix are denied access to a Site for any reason; or
Where Nubix are obliged to carry out additional, or unnecessary work as a result of incorrect actions or inadequate information provided by the Customer.
8. HARDWARE AND SOFTWARE SUPPORT CONTRACTS - TERMINATION
Agreements may be terminated by written notice by either party:
if the other commits any material breach of any term of an Agreement and subject to these Terms and Conditions and which in the case of a breach capable of being remedied shall not have been remedied within 28 days of a written request to remedy the same; or
if the other shall become bankrupt, convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or if a receiver or similar officer is appointed in respect of all or any part of the business or if a petition is presented or other steps are taken for the winding up of the other party or if anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party.
Any termination of an Agreement for whatever reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law.
Upon termination of an Agreement, each of the parties undertakes to the other to promptly return all items belonging to the other party which the party has no contractual right to retain.
9. CONFIDENTIALITY & PUBLICITY
Nubix and the Customer agree that any and all information identified by the other as "Confidential" and/or "Proprietary", or which, under all of the circumstances, ought reasonably to be treated as Confidential and/or Proprietary, will not be disclosed to any third person without the express consent of the other party. The confidentiality obligations of this clause shall not apply to any information or development that:
(i) Is or subsequently becomes available to the general public other than through a breach by the receiving party;
(ii) Is already known to the receiving party before disclosure by the disclosing party;
(iii) Is developed through the independent efforts of the receiving party;
(iv) the receiving party rightfully receives from third parties without restriction as to use.
Neither party will use the name (s), trademark (s), or trade name (s) (whether registered or not) of the other without the express prior written consent of the other, except that Nubix may use the Customer's name for reference purposes only.
10. NON SOLICITATION OF NUBIX EMPLOYEES
The Customer shall not, and shall procure that any third party on whose premises the Services (or part of them) are to be performed or who will otherwise take the benefit of the Services (or part of them) will not, solicit or utilise either directly or indirectly the services of any employee of Nubix who has been involved in the provision of the Services to the Customer for a period of 12 months following the end of any involvement by the individual concerned with any work for the Customer without the prior written consent of Nubix.
The Customer employs or uses directly or indirectly the services of any employee of Nubix in contravention of the above; or
in circumstances where the Services, or part of them, are not to be performed at the Customer's premises, but at the premises of a third party, or the Services, or part of them, are otherwise performed for the benefit of a third party, and that third party employs or uses directly or indirectly the services of any employee of Nubix who has been involved in the provision of the Services, at any time up to 12 months after the end of any involvement by that employee in the provision of the Services, without the prior written consent of Nubix;
the Customer shall pay to Nubix a sum equal to 22% of the Total Annual Employment Costs to Nubix of the employee concerned, such sum to be payable on the date when such employee is first employed or his services are first used by the Customer, or the third party, as the case may be, it being acknowledged that in view of recruitment difficulties and costs in the industry, this sum is a reasonable pre-estimate of the loss likely to be suffered by Nubix in the circumstances set out in this clause.
Neither party shall be liable for delay in or failure to perform its obligations under these Terms and Conditions if such delay or failure results from circumstances beyond its reasonable control.
Any notice required or permitted to be given hereunder shall be in writing and shall be given by delivering the same by hand or by sending the same by prepaid first class post or courier service or facsimile to the registered office of the addressee or such other address or number as that party may have notified to the other pursuant to this clause (or if no such address has been notified, the last known relevant place of business of that party). Any notice given as aforesaid shall be deemed to have been given or received at the time of delivery or transmission (if delivered by hand or courier or given by facsimile) or 48 hours after posting (if sent by post). In proving service it shall be sufficient to prove that the letter was correctly addressed and was posted, or where it was delivered otherwise than by post that it was delivered to the correct address or where it was sent by facsimile that it was transmitted to the correct number.
These Terms and Conditions shall be governed by and construed in accordance with English Law, and the parties hereby submit to the non-exclusive jurisdiction of the English Courts.
Title to the goods shall not pass to the Customer until payment in full of the price (including any interest or other payment due under the contract).
Nubix reserves the right to re-possess any goods in respect of which payment is overdue and thereafter to re-sell the same and for this purpose the Customer hereby grants an irrevocable right and licence to Nubix's servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours. The provisions of this sub-clause shall continue in force notwithstanding termination of the relevant contract howsoever caused.
15. WAIVER
The failure of either party to exercise any of its rights under these Terms and Conditions shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
SECTION B
Consultancy Services
16. SERVICES
Nubix agrees to provide the Consultancy Services as described in the Services Summary to the Customer under the terms set out herein.
17. STANDARD OF CONSULTANCY SERVICES
Nubix warrants and undertakes to the Customer that:
Nubix employees, agents and sub-contractors will have the necessary skill and expertise to provide the Consultancy Services described in the Summary of Services.
Nubix will provide independent and unbiased advice and will exercise reasonable skill and care in the provision of the Consultancy Services.
The Consultancy Services will be provided in a timely and professional manner.
The terms of reference for the Consultancy Services to be performed by Nubix shall be as specified in the Summary of Services.
The Customer may from time to time wish to vary the terms of reference. Under these circumstances, Nubix will use all reasonable endeavours to accommodate such variation. Any changes in the Contract Charge and/or time scales as a result of such variation shall be negotiated between the Customer and Nubix.
Unless otherwise agreed between the parties, the end product of the Consultancy Services will be as stated in the Summary of Services.
It is the Customers' responsibility to check and verify the viability and suitability of any solution that is proposed or implemented. No liability can be accepted by Nubix for the implementation of any proposed solution by the Customer.
Where progress reports are to be provided in accordance with the Summary of Services, Nubix shall render such reports at the time and in the manner specified or as otherwise agreed between Nubix and the Customer.
21. INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges that all Intellectual Property Rights in all data, reports, drawings, specifications, designs, plans, programs or other material produced or acquired by Nubix in the course of the performance of the Consulting Services shall vest in and remain the property of Nubix, unless expressly agreed otherwise in advance and in writing.
The parties agree that all Intellectual Property Rights which existed prior to the date of this Agreement in relation to any items used in the performance of the Consulting Services, shall remain the property of the existing owner of such Intellectual Property Rights.
To the extent that incidental expenses, including travel, hotel accommodation and meals are not expressly included in the Consultancy Service Charge, the Customer shall be liable to Nubix for such expenses;
The Customer agrees to provide, at its own expense, such resources and facilities as Nubix will require for the consultancy engagement, as set out in the Services Summary or otherwise communicated to the Customer;
The Customer will take all reasonable steps to ensure the safety of the personnel or representatives of Nubix when on the Site or the Customer's premises, as well as any property brought onto such premises by Nubix for the purpose of providing the consultancy.
23. LIMITATION OF LIABILITY FOR CONSULTANCY SERVICES
Except in respect of injury to or death of any person caused by Nubix’s negligence, in no event shall Nubix’s total cumulative liability to the Customer arising out of the provision of the Consultancy Services exceed the Consultancy Services Charge.
Hardware Support
Nubix provides Hardware Support Services (the Service) in respect of the Equipment under the terms set out herein.
Nubix undertakes to handle calls for the Service by providing appropriate maintenance in respect of the Equipment within the Fix Time specified in the Summary of Services.
25. CUSTOMER'S OBLIGATIONS
Warrant that the Equipment is in good working order and good mechanical and electrical condition at the date of commencement of the Initial Period.
Maintain a suitable environment and electrical supply for the Equipment which complies with specifications given by the manufacturer (s) of the Equipment or Nubix, and keep all external surfaces of the Equipment clean and in good condition.
Operate the Equipment in a proper manner and always under the supervision of trained and competent personnel.
Provide such services as may reasonably be required for safety or other reasons by Nubix engineers in pursuance of the maintenance of the Equipment.
Notify Nubix immediately if it makes any addition to, modification of, or adjustment to the Equipment. Nubix shall notify the Customer of the implications of any such addition, modification or adjustment in relation to the provision of the Service and in particular, reserves the right to increase the Contract Charge by giving 7 days notice in writing to the Customer.
Use only media of a type which is approved of by the manufacturer of the Equipment or Nubix.
Follow the manufacturer's advice on operating the Equipment and on carrying out operator's routine maintenance.
Insofar as it is legally authorised to do so, provide Nubix with full and free access at all reasonable times to:
all technical manuals and other documentation relating to the Equipment;
any diagnostic software which the Customer possesses in relation to the Equipment.
Nubix will at its option repair or replace (on an exchange basis) any parts of the Equipment which become unserviceable in normal use. Replacement parts shall become part of the Equipment and those parts which have been replaced shall become the property of Nubix. Should the Customer, for security reasons, wish to retain such replaced parts, Nubix shall charge the Customer a reasonable fee therefore.
Certain items of equipment may be designated by Nubix as "Non-Site Repairable". Where repairs are necessary to such Equipment, such items will be removed from the Site, repaired and returned at the earliest opportunity .
Where a fix cannot be effected within the specified time, Nubix will provide the Customer with an equivalent or better replacement item on loan and at its own expense until the original item of Equipment has been repaired or replaced and returned to site.
Title of the loan item shall at all times remain with Nubix. However, risk in the loan item will vest in the end-user whilst it is on the end-user's site. Likewise, title in the removed item of Equipment shall at all times vest in the end-user, however, whilst it is off-site for repair risk will vest in Nubix.
If Nubix reasonably considers that an item of Equipment requires reconditioning then Nubix may submit an estimate of the cost of reconditioning to the Customer. The cost of reconditioning will be in addition to the Hardware Maintenance Charge.
The Service does not include maintenance of the Equipment necessitated by other than fair wear and tear and in particular does not include:
Repair or damage caused by accident, misuse, neglect, movement of or interference with the Equipment, software errors in operating systems or application software; or by failure to maintain a suitable environment and electrical supply, or by any cause other than the normal usage of the Equipment.
Repair or damage caused by faulty manufacture of or modification of the Equipment, before the date of a Hardware Maintenance Agreement, or by any person other than an authorised representative of Nubix attempting to maintain the Equipment.
Maintenance of any other items not included in the Equipment specified in Hardware Maintenance Agreement.
Electrical work external to the Equipment, making modifications or specification changes to the Equipment, refurbishing the Equipment or adding or removing accessories, attachments or other devices.
Provision, maintenance or replacement of supplies or accessories, including (but not limited to) consumables, toner cartridges, cartridge discs, floppy discs, print banks and magnetic tapes.
The maintenance or replacement of cathode ray tubes in monitors and terminals except where a defect has arisen as a result of an electrical fault.
Maintenance necessitated as a result of fire, flood, storm, earthquake, willful interference by third parties, accidental damage and other similar causes.
Maintenance of laser printers or laser drums beyond their expected working life.
Maintenance of laptop screens and batteries.
Replacement of print heads.
Malfunction of files; loss of data, or software setup; the restoration of data from a defective hard disk to a replacement disk. At the Customer's request, Nubix may, in its sole discretion, agree to perform any of the fore mentioned services and shall in such circumstances be entitled to levy additional charges in accordance with the Hourly Rate.
SECTION D
Software Support Services
Nubix provides Support Services under the terms set out herein.
30. CUSTOMER'S OBLIGATIONS
The Customer shall:
Ensure that all Software is installed and operated in accordance with the supplier's instructions.
Ensure all appropriate software licences are in place throughout the duration of any Software Support Service Agreement.
Give Nubix reasonable notice of the installation of additional software products for which support is required.
Operate the Software in a proper manner and always under the supervision of trained and competent personnel.
Notify Nubix immediately if it makes any addition to, modification of or adjustment to the Software. Nubix shall notify the Customer of the implications of any such addition, modification or adjustment in relation to the provision of the Support Services and in particular, reserves the right to increase the Contract Charge or to terminate an Agreement in relation to the item of Software concerned as a result of such addition, modification or adjustment, by giving 7 days' notice in writing to the Customer.
Co-operate fully with Nubix in the diagnosis of the reasons for any malfunction of the Software.
Insofar as it is legally authorised to do so, provide Nubix with full and free access at all reasonable times to all technical manuals and other documentation relating to the Software.
The provisions of Clause 25 in Section 3 of this Agreement shall be deemed to be repeated in this Section 4.
The Customer acknowledges that the provision of the Support Service are not a substitute for proper user training or comprehensive end user documentation. The Customer shall ensure that:
its staff are fully and properly trained in the use of the Software in accordance with Nubix's reasonable recommendations from time to time:
its staff are competent in the use of the Equipment and all software products loaded thereon;
the Customer has a complete set of comprehensive and up to date end user documentation.
The Customer warrants that it is entitled or empowered to authorise Nubix to perform the Support Services in respect of the Equipment and the Software.
31. NUBIX'S OBLIGATIONS
Nubix will endeavour to answer enquiries and obtain information to its best ability. However, Nubix can offer no guarantee that every enquiry will be answered or that every problem will be solved in any given timescale.
Information and instructions provided to the Customer are to be taken as suggestions only. Any action taken as a result of a suggestion made by Nubix is the responsibility of the Customer and Nubix accepts no liability whatsoever for any consequential losses resulting either directly or indirectly from any action taken as a result of suggestions made by Nubix.
If as a result of a query raised by the Customer it becomes apparent that any item or part of the Equipment or the Software may not be performing in accordance with the manufacturer's or supplier's Specification, Nubix shall inform the Customer as soon as reasonably possible and, where, in accordance with the Summary of Services, Nubix has agreed to provide the Hardware Support Service, Nubix shall (where appropriate) initiate the provision of the Hardware Support Service in accordance with Section 3 of these Terms and Conditions.
The exclusions set out in Clause 29 in Section 3 shall apply mutatis mutandis to the provision of the Support Services by Nubix.