Part A - General Terms & Conditions
1.General
a) The Company means ramsac limited and the Customer is any party using the services, goods, advice or goodwill of the Company.
b) Orders are accepted and goods supplied subject to the following express terms and conditions, and all other conditions. Warranties and representations, express or implied, statutory or otherwise, except as to title, are hereby excluded. No addition thereto or variation there from shall apply unless agreed in writing by the parties.
c) These terms and conditions replace and supersede any pre existing agreements between the Customer and the Company.
2. Orders
a) The company shall be entitled by notice in writing to the Customer to cancel any uncompleted order or to suspend delivery if the Customer shall commit or allows to be committed any breach of these terms and conditions and if such breach be capable of remedy shall not so be remedied within 28 days of notice of the breach and such cancellation shall be without prejudice to any other remedy of the Company.
b) If any order is cancelled by the Customer then the Customer shall indemnify the company against all losses arising out of such cancellation.
3. Prices
a) Whilst every endeavour has been made to ensure the accuracy of the prices quoted, no responsibility can be accepted for any errors or omissions. Prices are subject to alteration without notice and are exclusive of V.A.T., carriage and insurance.
b) All prices are subject to change due to currency fluctuations, EC levy charges, E &OE, and changes in law.
c) In the event of any suspension or work through the Customer's instructions the price(s) shall be increased to cover any extra expense thereby incurred by the Company.
4. Payment
a) All accounts are strictly net and all payments due under the contract shall be made in full without set-off, deduction or counterclaim.
b) Accounts where credit terms have been agreed are payable on demand but in any case must be paid by a date which will ensure payment is received by the Company not later than 30 days following the date on which the goods are dispatched. In the event that any invoice becomes overdue, all invoices become payable immediately.
c) All overdue accounts will be subject to interest at 3% per month.
d) The Company may in its absolute discretion assign to any third party whatsoever any debt outstanding and due from the Customer without reference to the Customer.
e) Any queries relating to Company invoices must be raised in writing by the Customer within 7 days from the date of the invoice. If no query is raised by the Customer within this period it will be deemed as having been accepted in full.
5. Dispatch Dates
a) Any date quoted by the Company for delivery or installation is given in good faith as a reasonable estimate but time for delivery and installation is not of the essence of the contract. No liability is accepted for delays caused by the Suppliers, Vendors or Carriers of the Company.
b) If the Company is prevented, other than by its own act of default, or at the request of the Customer defers the delivery and/or installation of goods then the Company shall be entitled at its option seven days after the Company has notified the Customer in writing that the goods are ready for delivery and/or installation:
i) to increase the price by an amount which shall reasonably reflect the cost to the Company of the continued storage protection and insurance of the goods and all other additional costs incurred by it as a consequence of the delay and/or
ii) to require the Customer from a stated date to assume responsibility for the storage protection and insurance of the goods and to treat the goods as having been for the purpose of this contract delivered on such date.
6. Carriage, Delivery, Risk and Title
a) Risk in the goods supplied by the Company shall pass to the Customer on the delivery to the destination specified by the Customer. The Customer shall until title passes insure the goods for the full replacement value and keep them insured from the time when risk has passed to the buyer.
b) If the goods are damaged in transit this must be recorded in writing at the time of receipt. The Company cannot accept responsibility for goods signed for as received in "Good Condition".
c) Any damage to the goods in transit should be notified in writing to the Carrier and the Company within two days of receipt; packing and contents to be held for inspection. If the goods are not received by the Customer within six days of date of invoice the Carrier and the Company should be informed in writing immediately.
d) Until title to the goods has passed to the Customer the goods shall be held by the Customer as bailee for the Company and shall leave in place all marks and indications on the goods of the Company's ownership of them and shall if so required by the Company store them separately from other goods. Without prejudice to the foregoing conditions the Company shall have the right to re-sell or otherwise dispose of them.
e) If payment is overdue in whole or in part or immediately upon the commencement of any act or proceeding in which the Customer's solvency is involved, all sums in respect of goods supplied to the Customer or arising from any transaction, sale or account shall become due immediately and the Company may (without prejudice to any of its other rights) recover or resell the goods or any of them and the Customer hereby licences the Company its employees, servants or agents to enter the premises of its Customer for the purpose of recovering or re-selling the goods.
7. Warranties and Liability
a) The Company warrants that the goods are reasonably fit for the purpose of the Customer so far as that purpose has been made known to the Customer in writing and that they will conform to their manufacturers description but all other warranties and descriptions as to the quality of the goods or their ability to perform certain functions are expressly excluded from this contract.
b) The Company shall not be liable for any breach of the above warranties or guarantee ("The Warranties" and "The Guarantee"):
i unless the Customer has paid to the Company all monies payable on or by the date stipulated for payment.
ii unless the Customer gives written notice of the non-compliance or alleged defect within one week of the discovery of the non-compliance or defect or the date when such problem ought reasonably to have been discovered and in any event before the expiration of the warranty period.
iii unless the Customer makes no further use of the relevant goods and forthwith returns the goods to the Company (carriage paid)
iv if the goods have been modified, altered or otherwise tampered with in any way other than by a duly authorised representative of the Company.
v if the goods have been subjected to misuse, neglect, carelessness, lack of maintenance, vandalism or other commotion, disturbance or whatever nature whether affecting the goods directly or in directly as a result of such matter affecting the premises in which the goods are situated.
vi if and to the extent that the goods have been produced from designs or specifications by or on behalf of the Customer.
c) Notwithstanding the provisions of this clause if the Company is found liable for any loss or damages the Company's liability shall in no event exceed the total purchase price of the goods.
8. Specification/Sample
a) All illustrations, drawings, catalogues and descriptive matter are of generally informative nature only and do not form any part of the specification or description of the goods. The Company shall be entitled without notice to make such reasonable modifications to such specifications, descriptions, designs, materials or finishes as it deems necessary or desirable and the Customer shall not be entitled to object to or reject the goods by reason of such modifications.
9. Design
a) All specifications and designs submitted by the Company and the copyright in them and the right to reproduce any of them remain the Company's property.
b) Where goods are made or adapted in accordance with the Customers specifications the Customer shall indemnify the Company against all cost claims and/or expenses incurred by the Company in respect of the infringement or alleged infringement by such goods of any patents, registered designs, trademarks or other rights belonging to third parties.
10. Force Majeure
The Company shall not be responsible for the non-performance 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, acts of terrorism, strikes, Labour disputes, illness, flood, fire, tempest or any other cause beyond the control of the Company.
11. Assigns
Neither party may assign the Contract to which these terms and conditions apply nor of its rights or obligations under the Contract without prior consent in writing of the other party.
12.Severance
If at any time any one or more of these conditions (or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason the same shall be deemed omitted here from and the validity and/or enforceability of the remaining provisions of these conditions shall not be in any way be affected or impaired thereby
13. Waiver
No failure of or delay or forbearance by the Company in asserting or exercising any right or remedies under the contract shall affect its rights there under.
14. Data Protection
Data, both physical and electronic, will be held in the strictest confidence and in compliance with the relevant Data Protection Law and you consent to this. You may request at anytime that ramsac does not use data for Direct Marketing purposes.
15. Maintenance Service Agreement
Service provided under maintenance service agreement is subject to the terms and conditions of the appropriate maintenance service agreement.
Part Two - Terms and Conditions relating to on site consultancy and remote support contracts
1. ramsac limited agrees to offer telephone assistance to the Customer (on the basis that each server on the Customers site has a valid Service contract) between the hours agreed, excluding Bank and Public Holidays. ramsac limited reserves the right to offer a reduced service during the Christmas period.
2. Customer agreements are non-transferable and valid for the address in Schedule 2 only.
3. The Customer agrees that ramsac limited is not liable for damage caused to the Customer’s computer components as a result of improper installation or other hardware configuration caused by the Customer.
4. The Customer is strongly advised to keep backups of valued data and it is agreed that ramsac limited is not liable for data lost as a result of the Customer’s actions or ramsac limited’s advice at any time. (The Customer is also wholly responsible for the verification and validity of all backups and ramsac limited cannot be held responsible for the incorrect actions or procedures taken by the Customer).
5. The Customer is strongly advised to ensure full virus protection is implemented. It is the Customers responsibility to ensure that the most up to date virus definitions are implemented throughout the site. ramsac limited cannot be held responsible for virus infections introduced to the Customer in any way. ramsac limited withholds the right to insist on a chargeable site visit to remove and clean any identified infections.
6. ramsac limited agrees to provide remote connection assistance to the Customer (with the permission of the Customer) subject to the following conditions:
a. Where the issue is identifiably hardware-related, ramsac limited will attempt to diagnose the cause of the issue. ramsac limited will then advise the Customer of the appropriate procedures regarding on-site hardware maintenance through the relevant third party companies. At this stage ramsac limited’s responsibilities are at an end.
b. If the issue can be identified as being related to the configuration of the hardware, ramsac limited will diagnose the problem and attempt a resolution. However, where resolution requires the assistance of a manufacturer or other third party, ramsac limited cannot guarantee a satisfactory resolution of the issue.
c. Where the issue relates to the installation of new software, ramsac limited will assist the Customer with the installation and with the related configuration issues; however ramsac limited is not liable for the results of the actions the Customer takes during the installation and configuration, that deviate from the instructions given in the manufacturer’s installation guide.
d. ramsac limited takes no liability for the effects to the Customer’s PC from Shareware, Freeware, Unlicensed Software or Software downloaded from the Internet.
e. ramsac limited shall refuse to support any illegally loaded software.
f. If a problem is not rectifiable in a reasonable time period, ramsac limited reserves the right to arrange a chargeable site visit in order to remedy the fault. (see clause 8 below).
7. If the Customer’s hardware is not covered by an on-site warranty from a third party company, ramsac limited may organise for an engineer to visit the Customer and carry out the necessary work.
8. All site visits are subject to the following terms:
a. The Customer will be charged a daily or half daily rate agreed by ramsac limited in advance.
b. The Customer will supply written confirmation of acceptance of the rate to ramsac limited before any work commences.
c. ramsac limited does not guarantee a fixed time response.
d. The Customer will be charged for all parts used.
e. If the Customer signs a ramsac limited Job Sheet, the work is deemed to be acceptable. The Customer should raise any queries at this time.
f. ramsac limited will take every reasonable action to resolve issues and complete work in the allocated time but ramsac limited does not guarantee a fix and does not guarantee a time scale for any work completed on the Customer’s site.
g. The Customer will be liable for any additional time spent on the Customer’s site above and beyond the original quotation, at a pre agreed rate.
h. The Customer is responsible for ensuring the compatibility of any third party or specialist software or hardware prior to any work being carried out by ramsac limited.
i. ramsac limited shall be allowed time whilst on site to compose a site visit report advising action taken and future action required both by the Customer and ramsac limited.
9. It is recommended that the Customer takes heed of any advice given by ramsac limited following a site visit in relation to the operation and improvement to the Customers computer systems. ramsac limited cannot be held responsible for subsequent problems caused which are attributable to non-implementation of these actions.
10. ramsac limited will not deem an agreement or contract active until full payment has been received.
11. Calls levels to the remote support team over and above the monthly allowance (in the case of remote helpdesk lite and remote helpdesk plus services only) will be charged at £100 per hour or part thereof. Call allowances are based on a monthly quota, “unused” calls cannot be carried forward and no refunds will be made if the full service allowance is not used.
12. We will trouble shoot issues remotely for the time period stated as an inclusive part of your contract (in the case of remote helpdesk lite and remote helpdesk plus customers) after which we may refer the issue for a site visit, this will be chargeable and subject to the terms in section 8 above.
13. The annual “Network MOT” provided as part of the helpdesk plus and helpdesk premium services will consist of a four hour visit with a Network Consultant for the sole purpose of auditing and health checking the Customer’s network. Time on site above the four hours will be charged at our current hourly rate. The visit will be scheduled for the 12 month anniversary of your contracted service, and every 12 months thereafter. Visits cannot be bought forwards or used for any alternative purpose.
14. We aim to meet our service level response times for 95% of new support requests. It may not be possible in particularly busy periods.
15. Agreements, Contracts and Pre Paid Services will be suspended if the Customer has an overdue account with any part of the ramsac Group of Companies.
16. ramsac limited reserves the right to review service prices and will advise the Customer before the proposed date of fee change.
17. ramsac limited insists on the correct implementation of legal software and licences. ramsac limited will not install or support illegal programs, nor be held responsible in any way for any issues pertaining to illegal use of applications. It is the Customers responsibility to read, understand and abide by any conditions of use or End User License Agreements (EULA’s).
18. ramsac limited reserves the right to carry out a chargeable Health Check and/or Discovery Visit prior to commencement of an Installation, Contract or Agreement.
19. ramsac limited reserves the right to give notice to cancel a Customer Contract or Agreement.
20. The contract is subject to a three month minimum term with on going three month written notice period for cancellation.
21. Pre Paid Contracts or Agreements are non refundable upon cancellation by the Customer.
Part Three - Terms and Conditions relating to Network Visit Plan Agreements
22. Network Visit Plan (NVP) contracts are only available to remote support Customers
23. The NVP visit consists of a pre-paid on-site visit to take place at an agreed frequency.
24. Any time used over and above the pre-paid time will be charged at ramsac limited’s current hourly rates in half hour units.
25. Any time spent on site after 6.30pm, before 8.00am, or on Saturdays will be charged at one and a half times the hourly rate. Work carried out on Sundays or Public holidays will be charged at two times the standard hourly rate.
26. ramsac limited has a schedule of standard Network checks, which it must carry out each visit before attending to any additional on-site problems.
27. ramsac limited will issue a 12-month schedule of dates for NVP visits to the Customer at the beginning of each year.
28. An NVP visit may be moved forward at the request of the Customer in the instance of an emergency so long as ramsac limited has available resources to respond.
29. The tasks carried out by ramsac limited’s staff are designed to assist the Customer; however the ultimate responsibility of the computer system remains that of the Customer.
30. The Customer will be charged for any parts used in an NVP visit.
31. Should ramsac limited need to reschedule an appointment in the case of an emergency or illness, ramsac limited will contact the Customer and agree an alternative date.
32. The Customer is requested to provide details of any problems prior to the NVP visit. ramsac limited will contact the Customer before the visit to elicit this information.
Part Four - Terms and Conditions relating to ramsac serverguard Agreements
33. ramsac serverguard will provide automated remote checks of any covered servers. The service will run on a 24x7 basis but will only be monitored during ramsac’s standard opening hours. We reserve the right to temporarily suspend the service for essential system maintenance; this will be done with sufficient prior notice wherever practical.
34. ramsac serverguard provides essential information which will allow support to react to issues quickly however it does negate the need for regular system maintenance.
35. serverguard does not provide your system with protection, it is a monitoring tool which will provide an early warning message to the remote support team to allow them to proactively respond to errors.
36. The provision of the ramsac serverguard service does not mean ramsac are able to provide any guarantees for problem detection or server up time.
Part Five - Terms and Conditions relating to Dell
For Dell Terms and Conditions Click here
For Dell Service Terms and Conditions Click here
Part Six - First Recovery/Phoenixassist Service Terms & Conditions
1. Interpretation
In these terms:
‘Appointed Representative’ means the person designated as such (in writing) by First Recovery and the Client respectively.
‘Broker’ means any insurance broker through which the Client has arranged the First Recovery/Phoenixassist Service.
‘Business Day’ means any day which is not a Saturday, a Sunday or a bank holiday or public holiday in England, Scotland and Wales.
‘Charges’ means the charges levied by First Recovery in accordance with the tariffs, scales, charges, invoicing methods and terms of payment set out in these terms and the Schedule Sheet.
‘the Client’ means the person named on the Schedule Sheet for whom First Recovery has agreed to provide the First Recovery/Phoenixassist Service in accordance with these terms.
‘Client Business Information’ means all information pertaining to and which is required for the continuation of the Client's business including contact details for employees, contractors, agents, suppliers, customers, together with information relating to the Client's e-mail service provider including dial-up telephone numbers, e-mail account names, and DNS internet provider address details.
‘the Client Premises’ means the business premises described in the Schedule.
‘the Contract’ means the contract for the provision of the First Recovery/Phoenixassist Service by First Recovery to the Client.
‘Direct Physical Damage’ means damage to, or the complete or partial destruction of, the whole or part of the buildings at the Client Premises, or their contents.
‘the Emergency Accommodation’ means the alternative office accommodation for occupation by the Client to be arranged by First Recovery.
‘the Emergency IT System’ means the substitute IT system to be arranged by First Recovery, including PCs and a PC Network.
‘First Recovery’ means First Recovery Limited (registered in England under number 04631308) whose registered office is at 30 Camp Road, Farnborough, GU14 6EW
‘the First Recovery/Phoenixassist Service’ means the disaster recovery facilitation services provided to the Client by First Recovery and/or its Service Partners described in the Schedule Sheet and these terms.
‘the IT Services Provider’ means the person chosen by First Recovery to provide the Emergency IT System and associated services to the Client.
‘Month’ means a calendar month.
‘the Office Services Provider’ means the person chosen by First Recovery to provide the Emergency Accommodation.
‘PC’ means a personal computer comprising a CPU, a screen, a keyboard, a mouse, an operating system software, an internet browser and e-mail software.
‘PC Network’ means a wireless network including desktop or laptop personal computers, a data hub and associated hardware and software.
‘Person’ includes an individual, a partnership, and any legal entity (including a company, a limited liability partnership and any other corporate body).
‘Reseller’ means a third party approved by First Recovery to market, distribute and sell the First Recovery/Phoenixassist Service.
‘Service Partner’ means the IT Services Provider and the Office Services Provider, either individually or collectively.
‘the Schedule Sheet’ means the sheet to which these terms have been appended by First Recovery.
‘VAT’ means value added tax at the applicable rate prevailing from time to time.
‘Week’ means a period of seven consecutive days.
‘Workstation’ means office furniture comprising a desk, chair and filing space, together with a telephone point and network point for e-mail and internet connection.
Headings are for convenience only and shall not affect their interpretation.
Unless the context otherwise so requires:
(a) references to the Client and First Recovery include their permitted successors and assigns;
(b) references to statutory provisions include those statutory provisions as amended or re-enacted; and
(c) references to any gender include all genders.
In the case of conflict or ambiguity between any provision in these terms and the Schedule Sheet, the provision in the Schedule Sheet shall take precedence.
2. First Recovery's Obligations
2.1. Upon receipt of instructions from the Client's Appointed Representative, First Recovery shall provide to the Client those aspects of the First Recovery/Phoenixassist Service requested by the Client.
2.2. First Recovery has no obligation to provide the First Recovery/Phoenixassist Service to the Client, or to continue providing it, unless:
(a) The Client has suffered Direct Physical Damage which prevents the Client carrying on its usual and normal business activities at the Client Premises, and continues to do so; and
(b) The Client has paid all First Recovery's charges strictly in accordance with these terms and continues to do so.
2.3. If First Recovery starts to provide any part of the First Recovery/Phoenixassist Service to the Client at the Client's request when it has no obligation to do so, the Client shall promptly pay First Recovery's then current charges for those services.
3. The First Recovery/Phoenixassist Service
3.1. The First Recovery/Phoenixassist Service comprises the services described in this Clause 3.
Emergency Accommodation
3.2. This service is subject to the ready availability of suitable accommodation.
3.3. First Recovery shall use reasonable endeavours to have Emergency Accommodation made available to the Client (through the Office Services Provider) as close as possible in distance to the Client Premises within 2 clear Business Days.
3.4. The Emergency Accommodation is intended to provide temporary accommodation in an emergency so as to enable the Client to carry on its fundamental business activities. The Emergency Accommodation may provide a different Workstation, office and/or cubicle arrangement to that at the Client Premises. In particular, First Recovery cannot guarantee that all the Workstations will be located in a single room or unit.It is not intended to be of a standard equivalent to that of the Client Premises, and First Recovery is not obliged to provide accommodation to such a standard.
3.5. First Recovery shall use best endeavours to ensure that the rental agreement or lease in respect of the Emergency Accommodation is in the name of the Client.
3.6. First Recovery shall pay the Office Services Provider its fee for one month’s occupation by the Client, including any deposit or retainer required by the Office Services Provider.
Emergency IT System
3.7. First Recovery shall use reasonable endeavours to have the Emergency IT System delivered and (subject to the Office Services Provider's consent) installed at the Emergency Accommodation within 2 clear Business Days. This service is subject to the ready availability of suitable IT equipment, software and facilities. Following the installation of the Emergency IT System, First Recovery shall use reasonable endeavours to arrange for appropriate tests to be carried out in order to ensure that it operates adequately in all material respects.
Emergency Communications Redirect
3.8. First Recovery shall use reasonable endeavours to have telephone calls and facsimile messages directed to the Client’s normal telephone number(s) at the Client Premises diverted to the Emergency Accommodation within 2 clear Business Days. This is subject to any third party having any rights in, or control over, the Client Premises, any equipment or software there, or any relevant telecommunications network, providing all necessary permissions, co-operation and access.
4. Changes to the First Recovery/Phoenixassist Service
4.1. First Recovery may make any changes to the First Recovery/Phoenixassist Service which it reasonably believes are necessary to comply with any applicable health, safety or legal requirement.
4.2. First Recovery may make any changes to the First Recovery/Phoenixassist Service which it reasonably believes do not materially affect the nature or quality of the First Recovery/Phoenixassist Service.
5. The Client's Obligations
5.1. The Client shall comply fully with these terms.
5.2. The Client shall pay the charges set out in the Schedule Sheet.
5.3. The client shall reimburse First Recovery for any monies paid as a deposit or retainer to the Office Services Provider in respect of the Emergency Accommodation. The Client shall reimburse these monies within 14 days of receiving First Recovery's invoice.
5.4. The Client shall comply fully with its agreement with the Office Services Provider.
5.5. The Client shall pay the Office Services Provider all monies due in respect of the Client's use or occupation of the Emergency Accommodation.
5.6. The client shall pay First Recovery the rental fees for any parts of the Emergency IT System it retains beyond the first month.
5.7. The Client shall, at its own expense:
5.8. Provide First Recovery with (i) the Client Business Information, and (ii) all other information and documentation which is within its possession which is reasonably required by First Recovery, and in each case shall do so in good time to enable First Recovery to fulfil its obligations to the Client.
5.9. Co-operate fully with First Recovery and its agents.
5.10. Do anything reasonably required by First Recovery (including executing any documents).
5.11. The Client does not become the owner of anything provided by First Recovery, the Office Services Provider, or the IT Services Provider.
Nor does the Client acquire any right or interest in or to any such things. The Client shall not dispose of them. The Client shall keep them safe and in good condition until they are returned, and they are at the Client's risk until it returns them.
5.12. The Client shall indemnify First Recovery against any liability which it incurs to any third party (including a Service Partner) as a result of:
(i) the Client's breach of this agreement; (ii) the Client's breach of any terms which apply to the Client's use of any equipment, software, premises, facility or service provided by a Service Partner.
6. Confidentiality
6.1. Any information provided by the Client which is designated confidential by the Client shall be kept confidential by First Recovery, and all confidential information provided by First Recovery which is designated confidential by First Recovery shall be kept confidential by the Client; but the foregoing shall not apply to any information which is public knowledge at the time it is so provided, and shall cease to apply to any information which subsequently becomes public knowledge through no fault of the receiving party.
7. Limited Warranties
7.1. The First Recovery/Phoenixassist Service relates to arrangements for certain equipment, facilities and services to be made available by third parties (the Service Partners) to the Client in certain circumstances. First Recovery warrants that it will exercise reasonable care and skill when providing the First Recovery/Phoenixassist Service, which includes its selection of the Service Partners, but it does not give any condition, warranty or other assurance regarding any premises, equipment, software, facilities or services provided by the Service Partners other than that the person providing them will have the right to do so and that the Client will have the right to use them in accordance with the terms on which they are provided.
7.2. All conditions, warranties and other terms regarding the First Recovery/Phoenixassist Service which would otherwise be implied (whether by law, by any circumstances, by the nature of the service, or otherwise) are excluded.
7.3. All conditions, warranties and other terms regarding the Service Partners, and any premises, equipment, software, facilities or services provided by them, which would otherwise be implied (whether by law, by any circumstances, by the nature of what has been provided, or otherwise) are excluded.
8. Restricted Liability
8.1. First Recovery will not be liable for any loss of business, revenue or profit.
8.2. First Recovery will not be liable for any loss of, or damage to, reputation.
8.3. First Recovery will not be liable for any indirect or consequential loss or damage.
8.4. Provided it has selected the Service Partners with reasonable care and skill, First Recovery will not be liable for any act, omission or representation of any third party (including the Service Partners), whether wilful, negligent, fraudulent, dishonest, reckless or otherwise.
8.5. If First Recovery should be shown to have failed to have provided the
First Recovery/Phoenixassist Service with reasonable care and skill, it will not be liable for any act, omission or representation of any third party (including the Service Partners), whether wilful, negligent, fraudulent, dishonest, reckless or otherwise, unless it ought reasonably to have foreseen that it was likely to occur.
8.6. First Recovery will not be liable for any act, omission or representation of a Broker, or any other representative, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise.
8.7. Recovery will not be liable for the consequences of any fault or omission on the part of the Client or its representative, including any instructions supplied by the Client not being received, being received late, being incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form.
8.8. First Recovery will not be liable to pay more than £25,000, in aggregate and total, in respect of all claims arising out of this agreement, any breach of it, or any aspect of the First Recovery/Phoenixassist Service provided to the Client.
8.9. A restriction of a party's liability covers its liability on any legal or equitable basis for loss or damage of the kind described even if: (i) it is loss or damage of a kind which is in the contemplation of the parties, or ought reasonably to be in their contemplation, either at the time of entering into this Agreement or at any other time; (ii) it is loss or damage which arises naturally, in the ordinary course of things; or
(iii) it is loss or damage resulting from that party's negligence, or other negligence for which it would otherwise be liable.
8.10. As special exceptions, a restriction of a party's liability does not exclude or restrict any liability which it would otherwise have for any of the following: (i) any breach of any condition or warranty regarding title to any goods; (ii) any personal injury to anyone (whether or not it results in their death) resulting from negligence; (iii) fraud.
9. Duration and Termination
9.1. The Client may terminate the Contract at any time.
9.2. If the Client commits a material breach of these terms which cannot be remedied, First Recovery may terminate the Contract with immediate effect.
9.3. If the Client commits a material breach of these terms which can be remedied, First Recovery may terminate the Contract with immediate effect if it has notified the Client of the breach and the Client has failed to remedy it within 14 days.
9.4. First Recovery may terminate the Contract with immediate effect if:
(i) the Client convenes a meeting of its creditors; (ii) a proposal is made for a voluntary arrangement within Part I of the Insolvency Act
1986; (iii) a proposal is made for any other composition scheme or arrangement with (or assignment for the benefit of) the Client's creditors; (iv) the Client is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (v) if a trustee, receiver, administrative receiver, administrator, liquidator or similar officer is appointed in respect of all or any part of the business or assets of the Client; (vi) if a petition is presented, or a meeting is convened, for the purpose of considering a resolution for the winding up of the Client or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction), or other steps towards that end are taken.
10. Consequences of Termination
10.1. On termination of the Contract for whatever reason, First Recovery shall use reasonable endeavours to procure the return to the Client as soon as reasonably practicable of anything belonging to the Client which is in the possession or control of First Recovery or the Service Partners at the time of termination.
10.2. Notwithstanding termination of the Contract, the Client shall pay to First Recovery all sums which have become due.
10.3. Termination of the Contract for any reason shall not prejudice any other rights or remedies which either party would otherwise be entitled to, whether under these terms or otherwise, and shall not affect any accrued rights or liabilities of either party.
10.4. Termination of the Contract for any reason shall not prevent the coming into force, or the continuation of, any provision which, either expressly or by implication, is intended to come into force upon, or continue after, such termination.
11. Force Majeure
11.1. A party is not in breach of this Agreement, or otherwise liable to the other party, as a consequence of its late performance or non-performance of its obligations under this Agreement to the extent that its performance is delayed, hindered or prevented by any cause beyond its reasonable control (not including the acts and omissions of its own sub-contractors and the acts and omissions of the other party) provided it promptly notifies the other Party in writing of the reasons for the delay and uses all reasonable endeavours to avoid, overcome or minimise the effects of such delay and fulfils its outstanding obligations as soon as it becomes reasonably practicable to do so.
12. General
12.1. These terms, together with the Schedule Sheet, constitute the entire agreement between the parties and supersede any previous agreement or understanding. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
12.2. A notice to a party which is required or permitted by these terms must be in writing and must be delivered either at that party's registered office or at such other address as, at the relevant time, it has identified for that purpose.
12.3. A party's delay in exercising any right, or seeking any remedy, in respect of any breach of these terms, or its failure to do so, shall not by itself amount to a waiver of that or any other breach and shall not by itself prevent that party exercising that or any other right, or seeking that or any other remedy, in respect of that or any other breach.
12.4. First Recovery's acceptance of any payment due under these terms shall not by itself amount to a waiver of any breach of these terms or any other agreement, including any previous failure by the Client to pay any monies due under these terms or any other agreement.
12.5. If any provision is invalid or unenforceable, in whole or in part, that shall not affect the validity of any other provisions.
12.6. The Client authorises First Recovery to act as its agent is to the extent that these terms provide for First Recovery to act on behalf of the Client. The Contract shall not create any other relationship of agency between First Recovery and the Client for any purpose whatsoever, and the Client shall not act or represent itself in any way so as to bind (or purport to bind) First Recovery.
12.7. Nothing in these terms confers any benefit on, any person other than First Recovery (and its successors and assigns) and the Client. No one other than First Recovery (and its successors and assigns) and the Client may enforce or rely upon any of these terms. First Recovery (and its successors and assigns) and the Client may exercise any right they may have to rescind, terminate or vary these terms without informing, consulting or obtaining permission from any other person.
12.8. English law shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English courts.
The names ramsac, serverguard, phoenixassist and their associated logos are registered trademarks.