These terms and conditions apply to the sale, licence and maintenance (as applicable) by Zynk Software of any computer hardware or software or other similar or associated items or materials. These terms are divided into three parts; Sales, Support and Maintenance and General. The General Terms apply to all contracts of Zynk Software. The remaining terms apply depending upon the service to be provided by Zynk Software.
Part 1 – Sale of Goods
The following terms and conditions in this Part 1 apply to the sale of Goods by Zynk Software
1. Formation of Contract
1.1 Zynk Software will sell and the Customer will buy the Goods in accordance with Zynk Software’s written quotation (if accepted by the Customer) or the Customer’s written order (if accepted by Zynk Software) subject in either case to these Terms. No order submitted by the Customer is deemed to be accepted by Zynk Software unless Zynk Software confirm this in writing.
2. Accuracy of Order
2.1 The Customer is responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer.
3.1 All software, whether supplied, installed or implemented is provided within the terms and conditions and licence of the software provider.
3.2 If the software comprised in the Goods is not owned by Zynk Software then the customer will be required to enter into an end-user licence agreement with the owner of the software concerned.
3.3 If any software has to any extent been written or developed by Zynk Software then subject to clause 3.2 above, Zynk Software hereby grants a non-exclusive, non-transferable licence for the use of such software by the Customer for the duration of this Contract and all copies of such software are the property of
Zynk Software and notwithstanding clause 5.1 no title or ownership thereof will be transferred to the Customer.
4.1 Delivery of the Goods will take place by Zynk Software delivering the Goods to the place agreed in writing with the Customer.
4.2 Any dates and times quoted for delivery are estimates only and unless otherwise agreed in writing, delivery times are not of the essence of the contract. Zynk Software will not be liable for any loss or damage (howsoever arising) to the Customer should Zynk Software be unable to deliver the Goods within the quoted period.
4.3 Zynk Software is entitled to make partial deliveries by instalments and these Terms will apply to each partial delivery.
4.4 If the Goods are to be delivered in instalments, each delivery will constitute a separate contract and failure by Zynk Software to deliver any one or more instalments in accordance with these Terms will not entitle the Customer to treat the Contract as a whole as terminated.
5. Transfer of Property and Risk
5.1 Risk in respect of the Goods passes to the Customer at the time of delivery but the title in the Goods will not pass to the Customer until Zynk Software has received payment in full of the price of the Goods and all other goods agreed to be sold or services to be provided by Zynk Software to the Customer for which payment is then due.
5.2 Until title in the Goods has passed to the Customer, Zynk Software will be entitled at any time to require the Customer to deliver up the Goods to Zynk Software and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
5.3 Until title in the Goods has passed to the Customer, the Customer will hold the Goods as Zynk Software’s fiduciary agent and bailee, will not dispose of the Goods and will keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as Zynk Software’s property.
6.1 Where Zynk Software’s written quotation for the sale of the Goods or the Customer’s written order for the Goods (if accepted by Zynk Software) specifies installation of the
Goods or Zynk Software otherwise undertakes any such installation then the Customer will complete all necessary works that may be required to receive the installation of the Goods including all necessary IT infrastructure and suitable electrical supply. If Zynk Software is prevented from carrying out the installation through no fault of Zynk Software then Zynk Software is entitled to charge the Customer at Zynk Software’s then current prices for any additional works carried out by or on behalf of Zynk Software to complete the installation.
7.1 The Goods supplied hereunder are warranted to be free from defects in materials and workmanship for a period of 90 days from the date of delivery by Zynk Software. The Customer must within the said period of 90 days notify Zynk Software in writing of any such defects and permit Zynk Software to inspect the Goods as required by Zynk Software. If the Customer does not so notify then the Customer will not be entitled to reject the Goods and Zynk Software will have no liability for such defect.
7.2 The above warranty only applies where the Goods have been properly used in accordance with the relevant manufacturer’s specifications and any instructions by Zynk Software and does not apply to any Goods that have been repaired or modified by anybody other than Zynk Software.
7.3 If a valid claim is notified under clause 7.2 above then Zynk Software may at its discretion repair or replace the Goods free of charge or refund the price of the
Goods (or a proportionate part) in which case Zynk Software will have no further liability to the Customer.
PART 2 – PROVISION OF SUPPORT AND MAINTENANCE SERVICES
The following terms and conditions apply to the maintenance service described in the Scope of Service to be provided for the Equipment specified in the Scope of Service (“the Support and Maintenance”)
1. Zynk Software Responsibilities
1.1 Zynk Software will, subject to these Terms, provide the Support and Maintenance in accordance with the terms of the Scope of Service.
1.2 Zynk Software will use its reasonable endeavours to respond to a valid Call within the response time set out in the Scope of Service.
1.3 Zynk Software will use its reasonable endeavours to rectify defects or malfunctions in the Equipment on the telephone or by use of remote access where provided by the Customer.
1.4 If a defect or malfunction in the Equipment cannot be resolved on the telephone or by remote access, Zynk Software will use its reasonable endeavours to visit the Installation Address within the response times set out in the Scope of Service.
1.5 When carrying out work in accordance with these Terms, Zynk Software will use its reasonable endeavours to return the Equipment to service and, subject to these Terms, reinstate the Customer’s applications.
1.6 Zynk Software may at its discretion provide a permanent replacement part for the Equipment, either new or refurbished, and on exchange that part becomes the property of the Customer, and the faulty part replaced becomes the property of Zynk Software.
1.7 Zynk Software may repair the Equipment away from the Installation Address when it considers it necessary to do so.
1.8 Zynk Software 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 Zynk Software’s property and will be returned to Zynk Software on demand. The Customer is entirely responsible for such equipment and will indemnify Zynk Software in respect of any loss or damage to that equipment.
1.9 Zynk Software 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.
1.10 Where Zynk Software is required to carry out or does carry out work that is subsequently found to be outside Support and Maintenance, Zynk Software will be
entitled to charge for that work at Zynk Software’s then current rates.
2.1 Support and Maintenance shall commence on the date set out in the Scope of Service and, subject to these Terms, 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. Period of Availability
3.1 Zynk Software will only provide Support and Maintenance during the Scheduled Service Hours. If the Customer requests Zynk Software to carry out any Support and Maintenance outside the Scheduled Service Hours then, Zynk Software will use its reasonable endeavours to comply with this request but will charge the Customer for such services at Zynk Software’s then current rates.
3.2 The time taken by Zynk Software to respond to a Call will only be measured during the Scheduled Service Hours.
4. Customer Responsibilities
4.1 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.
4.2 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 Zynk Software from time to time.
4.3 The Customer will ensure that only personnel authorised by Zynk Software adjust, modify, configure, maintain, repair, replace or remove any part of the Equipment.
4.4 The Customer will maintain adequate records of the use, maintenance and malfunction of the Equipment and will provide Zynk Software with such information and assistance concerning the Equipment, its application, use, location and environment as Zynk Software may reasonably require to enable it to carry out the Support and Maintenance.
4.5 The Customer will immediately notify Zynk Software if there is any failure of the Equipment and will allow Zynk Software full and free access to the Equipment and all
documentation, software, materials and services necessary for the provision of the Support and Maintenance.
4.6 The Customer will ensure that relevant trained and experienced staff are available when required by Zynk Software to provide Zynk Software with information required by Zynk Software to diagnose and/or repair the Equipment.
4.7 Where Zynk Software 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 Zynk Software.
4.8 The Customer must tell Zynk Software in writing immediately that the Equipment or any part of it is changed.
4.9 The Customer will notify Zynk Software of change in the location of any part of the Equipment. Whilst any Equipment is being moved, all Zynk Software’s obligations to
provide the Support and Maintenance will be suspended. The Support and Maintenance will be reinstated following re-installation of the Equipment
provided that the Equipment has not been damaged or affected during the move.
4.11 Unless specifically included in the Scope of Service, the Customer is responsible for the cost of any Third Party Software upgrades which Zynk Software advise are required.
4.12 It is the Customer’s sole responsibility, in a manner acceptable to Zynk Software, to operate and verify a proper back up routine, maintaining all back up copies in a secure environment such that they can and will be provided to Zynk Software when required.
4.13 The Customer undertakes to put and keep in place adequate security measures to protect the Equipment and any other software or data from viruses,
harmful code or unauthorised access.
5. Support Visits
5.1 During each consecutive 12 month period of the Support and Maintenance, and where specified Zynk Software 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 Support and Maintenance.
6. System Audit
6.1 Zynk Software will, as often as Zynk Software thinks necessary and (save in the event of an emergency) upon reasonable notice carry out a System Audit within Zynk Software’s Normal Working Hours to confirm that, in Zynk Software’s opinion, the Equipment is in reasonable operating condition.
7. Service Exclusions
7.1 The Support and Maintenance does not extend to:
7.1.1 any Equipment not specified or included in the Scope of Service including any part of the Equipment which is in any way changed from that included in the Scope of Service;
7.1.2 any Equipment which was, in Zynk Software’s reasonable opinion, operating in an unstable or unsuitable manner prior to the commencement of the Support and Maintenance;
7.1.3 any work arising as a result of any breach by the Customer of any of its obligations under these Terms;
7.1.4 any work arising from any incident, wilful 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 Zynk Software;
7.1.5 any failure or defect caused by hardware or software not covered by these Terms;
7.1.6 failures or defects due to manufacture or design defects over which Zynk Software has no control;
7.1.7 refurbishment or repair of casings or outer surfaces;
7.1.8 any work to accessories, alterations, attachments or any other equipment that is external to the Equipment not identified within the Scope of Service;
7.1.9 reinstatement of customised versions of the standard desktop/operating system;
7.1.10 reinstatement of the Customer’s software and data not identified within the Scope of Service;
7.1.11 any consultancy, training or software or hardware Zynk Software may provide;
7.1.12 integration of the Equipment or any part thereof with other systems;
7.1.13 cleansing of viruses and spyware, or resolving the consequences of security breaches and incompatibilities in hardware and/or software.
7.1.14 upgrading the Operating Platform to be able to operate the Customer’s selected software applications;
7.1.15 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;
7.1.16 any Equipment in respect of which a notice has been served by Zynk Software under clauses 8 or 9;
7.1.17 any work arising by reason of any maintenance, service or repair work carried out in respect of the Equipment by a third party not previously approved in writing by Zynk Software.
8. Beyond Reasonable Repair
8.1 Zynk Software 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 Zynk Software to provide the Support and Maintenance in respect of such equipment will be suspended. If the Customer declines to have the Equipment overhauled or replaced at its expense within thirty days of such notification, Zynk Software may on written notice exclude such equipment from this Contract and 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 and will remove any loan equipment relating to the said equipment from the end of the notice period.
8.2 The provisions of clause 8.1 will apply equally in respect of any software included within the Equipment which, in the reasonable opinion of Zynk Software, is no longer economically viable to maintain or requires upgrading or updating.
9. Pre Inspection
9.1 Prior to commencement of the Support and Maintenance, Zynk Software may during Normal Working Hours inspect the Equipment, or any part of it, at the
Installation Address to confirm that it is, in Zynk Software’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 Zynk Software will notify the Customer accordingly. If the Customer declines to have such work carried out at its expense within thirty days of such notification, Zynk Software may on written notice exclude such equipment from Support and Maintenance 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.
PART 3 – GENERAL PROVISIONS
The following terms and conditions apply to all Equipment sold or to be sold and/or Software licensed or to be licensed and/or Support and Maintenance provided or to be provided to the Customer.
1.1 These Terms may only be amended, or varied with Zynk Software’s agreement in writing. The parties agree that these Terms will prevail notwithstanding any conflicting or additional terms or any orders or other notifications submitted by the Customer.
1.2 Words of a technical nature used in these Terms 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 these Terms 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 these Terms or otherwise nor will any single or partial exercise thereof preclude any further or subsequent exercise.
2.1 The description of any Goods contained in any invoice, order form, descriptive matter, specifications, catalogue or advertising material published or issued by Zynk Software is for identification only and the use of such description will not constitute a sale by description. Any typographical or other error or omission in any such literature or any other document issued or provided by Zynk Software may be corrected by Zynk Software without any liability on the part of Zynk Software.
2.2 Zynk Software reserve the right to supply Goods which differ from the specifications agreed between the parties and/or to modify any specifications in respect of the Support and Maintenance provided that this does not materially affect the performance of the Goods or the Support and Maintenance.
3.1 Unless otherwise stated in writing, quotations are valid for 30 days from the date of issue and are exclusive of VAT and any other relevant taxes which are payable by the Customer in addition.
3.2 All waiting time spent by any employees or agents of Zynk Software as a result of any delay, variation or failure by the Customer to comply with these Terms will be payable by the Customer to Zynk Software at Zynk Software’s then applicable hourly rate.
4.1 In respect of the Support and Maintenance the Customer will pay the Charges to Zynk Software on the date(s) set out in the Scope of Service.
4.2 In respect of the sale of all other Goods and services:
4.2.1 Payment will be made by the Customer on the date(s) agreed in writing between the Customer and Zynk Software at the point of order for the Goods or the requirement for services in accordance with these Terms.
4.2.2 Invoices for Goods will ordinarily be issued on delivery of the Goods. If the Goods are specific to the Customer or if the Customer fails to take delivery when required Zynk Software may invoice the Customer at any time after the Goods become available.
4.2.3 Zynk Software may require the Customer at any time prior to delivery to pay a deposit to secure any order or part thereof.
4.3.4 Any quantity discount given by Zynk Software at the point of order may be removed if the order quantity is subsequently reduced.
4.3 If no payment date(s) has been agreed in writing in accordance with clauses 4.1 or 4.2.1 above then payment by the Customer will be made within 30 days after the date of Zynk Software’s invoice.
4.4 If any payments from the Customer under these Terms are payable by instalments, the Customer will pay such instalments in advance, by standing order, direct debit or such other method as Zynk Software may agree, at the intervals agreed in writing with Zynk Software.
4.5 If the Customer fails to make any payment due to Zynk Software (whether under these Terms or otherwise) on its due date then Zynk Software may (without prejudice to any other remedy) cancel the Contract or suspend any further performance of any obligations by Zynk Software to the Customer or appropriate any money received from the Customer against such sums as Zynk Software may determine (notwithstanding any instructions from the Customer).
4.6 All payments due to Zynk Software under these Terms will be paid in full without any set off, deduction, counterclaim or withholding of any sum for whatever reason.
4.7 Zynk Software 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.
5.1 If any payments due to Zynk Software in respect of the Goods or the Support and Maintenance is to be paid by a third party then the Customer agrees that immediately on delivery of the Goods the Customer will sign the acceptance note for the leasing company or other third party and will generally take all steps as may be necessary to ensure that payment is made to Zynk Software for the Goods and/or the Support and Maintenance in accordance with these Terms.
6. Zynk Software Employees
6.1 The Customer will take all such steps as may be necessary to ensure the safety and welfare of any of Zynk Software’s representatives who visit any premises of or on behalf of the Customer;
6.2 The Customer will fully indemnify and hold harmless Zynk Software 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 Goods or the Equipment or any other breach of these Terms by or on behalf of the Customer.
7.1 Subject as expressly provided in these Terms and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law, but nothing in these Terms will affect the liability of Zynk Software for any fraudulent misrepresentation.
7.2 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transaction (restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Terms.
7.3 The Customer accepts that in respect of the sale of the Goods, whilst Zynk Software will endeavour to use its expertise and experience to advise the Customer, Zynk Software is acting as a supplier only and it is the Customer’s responsibility to ensure that the Goods will be suitable for its requirements and the Customer acknowledges that prior to the Contract it has fully and accurately advised Zynk Software of its requirements, both present and anticipated, in respect of the Goods.
7.4 If Zynk Software is unable, other than through the act or default of the Customer, within a reasonable time to repair or replace any defective Goods in accordance with the Warranty set out in these Terms and where such Goods are unusable due to such defect then, the Customer’s only remedy is to reject such Goods and on their return to Zynk Software’ s premises the Customer is entitled to recover the price paid for such Goods provided the Customer notified such defect in accordance with these Terms,
7.5 Without prejudice to clause 7.7, if Zynk Software fails to provide Support and Maintenance in accordance with its obligations hereunder, the total Liability of Zynk Software in any one year for any Loss suffered by the Customer as a result of such failure will not exceed the Charges paid by the Customer in such year for the Support and Maintenance in question.
7.6 Except in the case of death or personal injury caused by Zynk Software’s negligence, or liability for defective products under the Consumer Protection Act 1987, Zynk Software will not have any 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 even if Zynk Software had been advised of the possibility of such potential loss.
7.7 Except in the case of death or personal injury caused by Zynk Software’s negligence, or liability for defective products under the Consumer Protection Act 1987, in no event shall Zynk Software’s Liability in respect of any Loss to the Customer exceed £50,000.00.
7.8 Except in the case of death or personal injury caused by Zynk Software’s negligence, or liability for defective products under the Consumer Protection Act 1987, no action regardless of form may be brought by the Customer more than 12 months after the cause of action has accrued.
7.9 Zynk Software will have no liability under these Terms or otherwise to the Customer arising out of:
7.9.1 any loss or corruption of any documents, data, memory erasure of media stored on disk, whether total or partial howsoever arising 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;
7.9.2 any loss or corruption of any documents, data, memory erasure of media stored on disk, whether total or partial howsoever arising, including but not limited to loss which may occur, whilst installation, service or maintenance work is being carried out by or on behalf of Zynk Software in accordance with these Terms or any other reason;
7.9.3 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); and if any damage to any of the program or data files of the Customer occurs then Zynk Software’s responsibility will be confined to assisting the Customer to restore the latest backup copy and installing application software made available on site by the Customer. If on site assistance is required to reconstruct the files then Zynk Software will charge the Customer for the cost of such assistance at Zynk Software’s then current rates.
8.1 The Customer warrants and represents that the use by Zynk Software of any data, materials or equipment supplied by the Customer for use by Zynk Software in the provision of the Support and Maintenance, will not infringe the intellectual property rights of any third party and the Customer will fully indemnify Zynk Software in this respect.
9.1 Except as expressly provided, neither party may at any time whether during or after the expiry of these Terms use or disclose the other party’s Confidential Information and the Customer will take all reasonable steps to ensure that its employees are bound by the same obligations and that such obligations will continue beyond the termination of employment with the Customer.
10.1 Zynk Software will not be liable for any failure or delay in complying with these Terms if the failure of delay was due to force majeure, including any circumstances whatsoever beyond the reasonable control of Zynk Software in which event Zynk Software will as soon as reasonably practicable notify the Customer of the nature and extent of the circumstances in question. If the force majeure continues for more than 30 days then Zynk Software may cancel this Contract (or any part thereof) without liability to the Customer.
11.1 Zynk Software may assign, sub-contract or otherwise transfer the benefit of, and/or its obligations under this Contract to any person at any time. Zynk Software is a member of a group of companies and accordingly Zynk Software may perform any of its obligations or exercise any of its rights under this Contract through any member of its group.
11.2 The Customer acknowledges that this Contract 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 it’s obligations under this Contract without the prior written authority of Zynk Software and on such terms as Zynk Software may reasonably require.
11.3 Save where expressly stated in these Terms, no person will become entitled to enforce any of its provisions of these Terms 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 these Terms.
12.1 Zynk Software may without prejudice to any other remedy available to it at any time by giving written notice terminate or suspend this Contract or such part of it as Zynk Software may elect (including stopping any Goods in transit) if:
12.1.1 the Customer commits any continuing or material breach of these Terms and if the breach is capable of remedy, is not remedied within thirty days of a written notice detailing the breach;
12.1.2 a resolution is passed or an order is made for the liquidation of or the winding up of the Customer (save for the purpose of a bona fide reconstruction or amalgamation);
12.1.3 the Customer becomes subject to an administration order, a receiver or manager or administrative receiver is appointed over the Customer’s property or assets;
12.1.4 the Customer suffers execution or distress or takes or suffers any similar action in consequence of a debt;
12.1.5 the Customer is insolvent or would be taken as insolvent under section 123 Insolvency Act 1986;
12.1.6 the Customer is dissolved or otherwise threatens or ceases to carry on business or a substantial part of it;
12.1.7 in the case of a sole trader or partnership anything analogous to any of the above occurs.
12.2 On termination of this Contract for any reason the Customer will return or delete any of Zynk Software’s Confidential Information and return to Zynk Software all property of Zynk Software under the Customer’s possession or control.
12.3 On termination of the Contract any licence to use software granted by Zynk Software will immediately terminate and the Customer will return to Zynk Software any such software and all copies thereof and will not use or permit the use of any such software. The Customer acknowledges and agrees that Zynk Software will be entitled to remove such software from all operating systems of the Customer whether by means of remote access or otherwise. The Customer will not do or omit to do anything which might prevent or hinder such removal.
12.4 If the Customer terminates this Contract (or Zynk Software terminates by reason of any acts or omissions of the Customer) then
12.4.1 in respect of any Goods such termination can only be made with Zynk Software’s written consent and on terms that the Customer will indemnify Zynk Software in full against all loss (including loss of profit) costs, charges and expenses incurred by Zynk Software as a result of such termination; and12.4.2 in respect of the Support and Maintenance if the termination occurs prior to the end of the Initial Term, Zynk Software 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 to recover such costs as Zynk Software has reasonably incurred in equipping itself to deliver the Support and Maintenance and which have not been fully recovered by Zynk Software from the Charges paid by the Customer at the date of termination.
13. Data Protection
13.1 Each party will ensure that in the performance of its obligations under these Terms it will at all times comply with the Data Protection Act 1998.
13.2 The Customer consents to the processing by Zynk Software of all the Customer’s personal data (as the term ‘personal data’ is defined in the Data Protection Act 1998) for all purposes connected with these Terms.
13.3 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 Zynk Software has no liability for the loss, corruption or interception of any such data.
14. Non Solicitation
14.1 The Customer acknowledges the investment made by Zynk Software in the training of Zynk Software’s Personnel and the commercial interest which Zynk Software has in retaining their services.
14.2 The Customer agrees that if any of the Zynk Software Personnel who have provided all or any part of any services for or on behalf of Zynk Software to the Customer within 3 months of leaving the employment or engagement of Zynk Software accepts an Engagement with the Customer then the Customer will pay to Zynk Software such sum as represents 30% of the anticipated annual salary or other sums to be paid by the Customer to such person(s) within the first year of such Engagement.
14.3 For the purpose of this clause 14 references to the Customer will include any person or entity to whom such person(s) is introduced (directly or indirectly) by the Customer.
15.1 All notices under these Terms must be in writing and 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.
16. Law and Jurisdiction
16.1 These Terms will be governed by and construed in accordance with English Law and the English Courts will have jurisdiction to hear all disputes arising connection with these Terms.
16.2 The invalidity or unenforceability for whatever reason will not prejudice the continuation in force of the remainder of these Terms and if any part of these Terms is held by a Court or other competent authority to be illegal or ineffective it or they will be replaced with such legal and effective terms that most closely approach the ineffective terms.
17. Entire Agreement
17.1 These Terms and the Scope of Service contains the entire agreement between the parties with respect to their subject matter and supersede all previous written and oral agreements and understandings between the parties. The Customer acknowledges that in entering into the Contract it does not rely on any representation, warranty, agreement or other provision except as expressly set out in these Terms 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 these Terms will affect the liability of Zynk Software for any fraudulent misrepresentation.
In these terms and conditions, unless the context otherwise requires, the following words have the following meanings:
- Call – Communication received by Zynk Software from the Customer reporting a defect or malfunction in the Equipment.
- Charges – The sums payable by the Customer to Zynk Software for the Support and Maintenance, as set out in the Scope of Service.
- Confidential Information – Any trade secrets or confidential or proprietary information of either party, including these Terms, but excluding any information:
- (a) in the public domain otherwise than by a breach of the Contract;
- (b) which, prior to disclosure, was already known by the recipient;
- (c) that the other party develops independently of or to any information that is disclosed to it under the provisions of the Contract; or
- (d) which is subsequently disclosed to the recipient by a third party at liberty to disclose it.
- Contract – The contract between the Customer and Zynk Software for the sale of Goods and/or the Support and Maintenance in accordance with these Terms.
- Customer – The person who accepts Zynk Software’s written quotation for the sale of the Goods and/or the supply of the Support and Maintenance or whose written order in respect thereof is accepted by Zynk Software.
- 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.
- Goods – The computer hardware, software and related equipment which Zynk Software is to supply in accordance with these Terms.
- Initial Term – The fixed period for which the Support and Maintenance 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 or such other address as may be agreed in writing by Zynk Software
- 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 Contract.
- 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 Zynk Software, its employees, its agents or otherwise.
- Normal working hours – 09:00 to 17:00 Monday to Friday but excluding bank or statutory holidays.
- Operating Platform – The complete configuration of hardware, ancillaries/accessories and operating system for an item of Equipment.
- Personnel – Any employee, agent, consultant and/or sub-contractor of the party concerned
- Scheduled Service Hours – The times during which Zynk Software will endeavour to provide the Support and Maintenance as specified on 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 the Support and Maintenance.
- Support and Maintenance – The provision of a maintenance service for the Equipment together with proactive support visits as set out in the Scope of Service.
- System Audit – Means an inspection of the Equipment or part thereof but does not include repair or replacement.
- Third Party Software – Software developed and licensed by a third party, for which Zynk Software have agreed to provide support, as detailed in the Scope of Service
- Zynk Software – Zynk Software Limited (CRN 04433554) or such other group company as may be notified to the Customer from time to time.