IT Services Terms and Conditions

1. DEFINITION

1.1           “Customer” means the party identified as the customer in this Agreement to whom FROG IT Services Ltd may agree to supply products in accordance with these terms and conditions.

1.2           “FROG IT Services Ltd” means FROG IT Services Ltd of Halifax House, 4 Station Road, Great Shelford, Cambridgeshire, CB2 5NE or any subsidiary or associated company.

1.3           “Products” means goods or services including but not limited to computer hardware and software items to be provided by FROG IT Services Ltd to the Customer in accordance with these terms and conditions.

1.4           “Third Part Software” means all software and hardware owned by or licensed to the Customer from a third party owner (whether or not supplied by FROG IT Services Ltd) and which comprises part of the Products.

2. ORDER ACCEPTANCE

2.1           All orders placed with FROG IT Services Ltd by Customer for Products shall constitute an offer to FROG IT Services Ltd under these terms and conditions, subject to availability of these products and to the acceptance of the order by FROG IT Services Ltd’s authorised representative.

2.2           All orders are accepted and Products supplied subject to these express terms and conditions only. No amendment to these terms and conditions will be valid unless confirmed in writing on or after the date hereof by FROG IT Services Ltd’s authorised representative.

2.3           It is agreed that these terms and conditions prevail over the Customers terms and conditions of purchase unless these latter terms and conditions are amended by FROG IT Services Ltd in writing and signed by FROG IT Services Ltd.

3. INDEPENDENT CONTRACTOR

The relationship between the Supplier and Customer is that of Independent Contractor. Neither party is the agent of each other, and neither party has any authority to make any contractor make any obligation expressly or impliedly in the name of the other party, without the other party’s prior written consent for express purposes connected with the performance of this Agreement.

4. DESPATCH

4.1           Any time quoted for despatch is to be treated as an estimate only, but despatch may be postponed because of conditions beyond FROG IT Services Ltd’s reasonable control, and in no event shall FROG IT Services Ltd be liable for any damages or penalty for delay in despatch or delivery.

4.2           Risk shall fall to the Customer at the time the Products are despatched by FROG IT Services Ltd. FROG IT Services Ltd accepts no liability for loss or damage caused by the carrier.

4.3           If products have not been received the Customer must notify FROG IT Services Ltd within 7 days of the date of the invoice. If proof of delivery is required, this must be requested within 14 days of the date of invoice.

5. CANCELLATION AND RESCHEDULING

Subject to clause 8.2, any request by the Customer for a cancellation of any order or for the rescheduling of any deliveries, will only be considered by FROG IT Services Ltd if made at least 12 hours before despatch of the Products, and shall be subject to acceptance by FROG IT Services Ltd at FROG IT Services Ltd’s sole discretion, which is also subject to a reasonable administration charge therefore by FROG IT Services Ltd. The Customer hereby agrees to indemnify FROG IT Services Ltd against all loss, costs (including the cost of labour and materials used, and overheads used), damages, charges and expenses arising out of the order and its cancellation and rescheduling.

6. PRICING

6.1           Catalogues, price lists and other advertising literature or material as used by FROG IT Services Ltd are intended only as an indication as to the price and range of goods offered and no prices, descriptions or other particulars therein shall be binding to FROG IT Services Ltd.

6.2           All prices are given to FROG IT Services Ltd at the time of order on an ex-works basis and the Customer is liable to pay for transport, parking and insurance.

6.3           All quoted or listed prices are based on the cost to FROG IT Services Ltd of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of Products, which have not yet been delivered, the price payable may be subject to amendment without notice at FROG IT Services Ltd’s discretion.

6.4           All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by the Customer and will be supplied in accordance with UK legislation in force at the taxpoint date.

7. PAYMENT TERMS

7.1           Invoices will be raised and dated by FROG IT Services Ltd on the date of despatch of the Products. Unless otherwise specifically requested and agreed, invoices will be payable by the Customer within 30 days from the date of invoice or in advance in the case of support services. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for the late payment for the date payable at a rate of 4% per annum above the base rate for the time being of the TSB Bank plc. Such interest shall accrue on a daily basis and be payable on demand after as well as before judgement.

7.2           When all price, taxes and changes due in respect of the Products and any Products supplied previously to the Customer have been paid in full, title to hardware Products only shall pass to the customer.

7.3           Not withstanding despatch and the passing of risk in the Products to the Customer pursuant in Clause 4, or any other provision of these conditions, the property of the hardware Products shall not pass to the Customer, until FROG IT Services Ltd have received cash or cleared funds payment of the price of the Products and all of the products agreed to be sold by FROG IT Services Ltd to the Customer for which payment is due.

7.4           Until such time as the property of the Products passes to the Customer, the Customer shall hold the Product as FROG IT Services Ltd’s fiduciary agent and shall keep the Products properly stored, protected and insured and identified as FROG IT Services Ltd’s property. Until that time the Customer shall be entitled to resell or use the Products in the ordinary course of its business, but shall account to FROG IT Services Ltd for the proceeds of sale or otherwise of the Products whether tangible or intangible, including proceeds and shall keep all such proceeds separate from any monies or properties of the Customer and third parties and, in case of tangible proceeds properly stored, protected and insured.

7.5           Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and not been resold), FROG IT Services Ltd shall be entitled at any time to require the Products be delivered to FROG IT Services Ltd, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.

7.6           The Customer’s power of sale or right to use such Products shall immediately cease if an Administrative receiver is appointed overall or any part of the assets, or if it is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986.

7.7           On termination of the Company’s power of sale or right to use the Products, the Customer will immediately hold the Products to the order of FROG IT Services Ltd.

7.8           The Customer shall not be entitled to pledge or in any way change by way of security for any indebtness, any of the Products which remain the property of FROG IT Services Ltd, but if the Customer does so, all monies owing by the Customer to FROG IT Services Ltd shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable.

7.9           FROG IT Services Ltd reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, FROG IT Services Ltd reserves the right to withdraw any credit facility such that the whole of the Customer’s account becomes due for payment forthwith.

8. SPECIFICATION OF PRODUCTS

8.1           FROG IT Services Ltd will not be liable of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufactures specifications or technical data and will not be responsible for any loss or damage resulting from circulation or cessation of supply following such variation. FROG IT Services Ltd will use its reasonable endeavours to advise the Customer of any such impending variation as soon as it receives any such notice thereof from the manufacturer.

8.2           Unless otherwise agreed the Products supplied in accordance with the manufacturers standard specifications as these may be improved, substituted or modified. FROG IT Services Ltd reserves the right to increase its quoted or listed price, or to change accordingly in respect of any other orders accepted for Products of non-standard specification and in no circumstances will it consider cancellation of such orders or the return of such orders.

9. PROPRIETRY RIGHTS IN SOFTWARE PRODUCTS

9.1           The Customer hereby acknowledges that any proprietary rights in any Third Party Software supplied hereunder including, but not limited to any other title ownership rights, patent rights copyrights and trade secret rights, shall at all times and for all purposes vest and shall remain vested in the Third Party Software owner.

9.2           The customer hereby acknowledges that it is its sole responsibility to comply with any terms or conditions of licence attaching to Third Party Software supplied and delivered by FROG IT Services Ltd (including if so required the execution and return of Third Party Software licence). The Customer is hereby notified that if failure to comply with these terms and conditions could result in the Customer being refused a software licence or having the same revoked by proprietary owner. The Customer further agrees to identify FROG IT Services Ltd as the suit of a Third Party Software owner as a result of any breach by the Customer of such conditions.

9.3           NO TITLE OWNERSHIP OF SOFTWARE PRODUCTS OR ANY THIRD PARTY SOFTWARE LICENCED TO THE CUSTOMER UNDER THIS AGREEMENT IS TRANSFERRED TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.

10. RETURNS

10.1         FROG IT Services Ltd reserves the rights to levy an administration charge in respect of the rotation of Products and returns.

10.2         Returns must be made subject to the following:

  1. prior authority having been obtained from FROG IT Services Ltd which will be given at FROG IT Services Ltd's sole discretion;
  2. within 30 days of the date of invoice;
  3. subject to stock rotation policy;
  4. the Products must be properly placed;
  5. the Products must be in a saleable condition;
  6. the Products must be accompanied by a list;
  7. the Product is still covered by warranty (see section 11).

10.3         FROG IT Services Ltd reserves the right to reject any Product which do not comply with the conditions set out in clause 10.2

10.4         If FROG IT Services Ltd nevertheless agrees to accept any products returned which are not in a saleable condition, FROG IT Services Ltd reserves the right to change the cost to the Customer of bringing the Products into a saleable condition.

11. WARRANTY

11.1         FROG IT Services Ltd warrants that it has good to licence or supply all Products to the Customer.

11.2         If any part of the hardware Products should prove defective in materials or workmanship under normal operation or service, such products will be replaced or repaired only in accordance with any warranty cover or terms provided by the manufacturer of the Products PROVIDED THAT no unauthorised modifications to the Product or to the system which the Product forms part have taken place. FROG IT Services Ltd is not responsible for the cost of labour or other expenses incurred in repairing defective or non-conforming parts.

11.3         All software products supplied hereunder are supplied “as is” and the sole obligation of FROG IT Services Ltd in connection with the supply of software Products is to use all reasonable endeavours to obtain and supply connected version from the manufacturer concerned in the event that such software Product should fail to conform to the Product description PROVIDED ALWAYS THAT the Customer notifies FROG IT Services Ltd of any such non-conformity within 90 days of the date of delivery of the applicable software Product.

11.4         If the product is rejected by the customer as not being in accordance with the Customer’s order pursuant to clause 11.2 or 11.3, FROG IT Services Ltd will accept the returns of such products provided that it receives written notification thereof giving detailed reasons for rejection. FROG IT Services Ltd will not consider any claim for compensation, indemnity or refund under liability, if anything has been established or agreed with the manufacturer and when applicable the insurance company. Under no circumstances shall the invoiced Products be deducted or set off by the customer until FROG IT Services Ltd has passed a corresponding credit note.

11.5         EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 11, FROG IT SERVICES LTD DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY STATUTE OR OTHERWISE INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION DESIGN, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.

12. INDEMNITIES AND LIMITS OF LIABILITY

12.1         FROG IT Services Ltd will indemnify the Customer for direct physical injury or death caused solely by defects in any of the Products or caused by negligence of its assigned employees acting within the course of their employment and their scope of authority.

12.2         FROG IT Services Ltd will indemnify the Customer for direct damage to property caused solely by defects in any of the Products or caused solely by negligence of its assigned employees acting within the course of their employment and the scope of their authority. The total liability of FROG IT Services Ltd under this subclause shall be limited to £250,000 for any one event or series of connected events.

12.3         Except as stated in clauses 12.1 and 12.2 above, FROG IT Services Ltd disclaims and excludes liability to the Customer in connections with these terms and conditions including the Customer’s use of the Products and in no event shall FROG IT Services Ltd be liable to the Customer for special, indirect or consequential damage including but not limited to loss of profits arising from loss of data or in connection with the use of Products. All terms of a nature, express or implied, statutory or merchantability are hereby excluded. The Customer shall identify and defend FROG IT Services Ltd and its employees in respect of any claims by third parties which are occasioned by a rise from any FROG IT Services Ltd performance or non-performance pursuant to the instructions of the Customer or its authorised representative.

13. TERMINATION OF CLAUSE

This agreement may be terminated forthwith by notice in writing:

13.1         By FROG IT Services Ltd if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment in clause 7.1

13.2         If either party fails to perform its obligations under this Agreement or such failure continues for a period of 14 days after written notice thereof, by the other party.

13.3         The CUSTOMER shall give 1 months written notice prior to the end of the contractual period for the cessation of support services otherwise all twelve month contracts shall continue to run.

13.4         If any party is involved in legal proceedings concerning its insolvency, ceases trading, or commits an act of bankruptcy, is adjudicated bankrupt or goes into liquidation, whether voluntary or involuntary, other than for the purpose of amalgamation or reconstruction, or makes an agreement with creditors or petitions for an administration order or has a Receiver or Manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of section123 of the Insolvency Act 1986, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this agreement forthwith.

13.5         Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect in any accrued rights or liabilities of either party.

14. EXPORT AND/OR RE-EXPORT LIMITATION

Having regard to the current statutory or other United Kingdom government regulations in force from time to time and, in the case of Products manufactured in the United States of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the customer to FROG IT Services Ltd of an ultimate destination for any Products, the customer will not export and re-export any Products without first obtaining all such written consents or authorisations as may be required by applicable governments regulations.

15. CONTRACT

15.1         The headings in this agreement are for ease of reference only, and shall not affect its interpretation or construction.

15.2         No forbearance, delay, indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.

15.3         The customer agrees not to assign any of its rights of herein without the prior written consent of FROG IT Services Ltd.

15.4         In the event of any of these terms and conditions or any part of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be predicated.

15.5         Neither party shall be liable to the other for any delay in failure to perform its obligations hereunder rather than a payment of money, where such a delay of failure results from force, a major act of God, fire, explosion, accident, industrial dispute, or any cause beyond its reasonable control.

15.6         Any documents or notices hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the address of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.

15.7         These terms and conditions shall be constructed in accordance to English Law.

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