| 1. |
DEFINITIONS |
| 1.1. |
In these Conditions, unless the context otherwise requires:
"Acceptance Certificate” means the certificate (if any), to be signed by the Customer
to accept the Products and Services on completion of each of the Acceptance Tests as
set out in an Order.
"Acceptance Criteria" means the criteria (if any) for acceptance of the Products and
Services set out in an order.
"Acceptance Tests" means the tests (if any) set out in an Order to establish whether
the Products and Services meet the criteria for acceptance agreed between IKON and
the Customer.
"Confidential Information" has the meaning assigned to it in Condition 16.
“Customer System” means the Customer’s information technology infrastructure.
"Delivery" means physical delivery of the Products to the Site and/or completion of
the Services.
"Order" means the document setting out the Products, Services, Price and any further
detail concerning their supply to the Customer.
"Price" means the payment due by the Customer to IKON for all the Products and
Services including software license fees (if any) to be paid in accordance with an
Order.
"Products" means the equipment, accessories or other products specified in an Order.
"Project Manager" means the authorised representative of either party stated in an
Order.
"Services" means installation and/or configuration of the Products following Delivery
as specified in an Order or any other services set out in an Order.
"Site" means the location identified in an Order where the Products and Services are
to be Delivered.
"Software" means the software (if any) identified in an Order to be supplied to the
Customer.
"Subcontractor" means any subcontractor to whom the execution of any part of the
Delivery is assigned by IKON. |
| 2. |
PRODUCTS AND SERVICES |
| 2.1. |
IKON agrees to |
| 2.1.1. |
supply the Products and Services set out in Orders accepted by IKON from time to
time; |
| 2.1.2. |
deliver the Products and Services at the Site in accordance with the dates for Delivery
(if any) specified in the Order; |
| 2.1.3. |
obtain for the Customer the non-exclusive right to use Software (if any) in accordance
with an Order or the applicable Software licensor’s license agreement. |
| 2.2. |
The parties agree that the Products and Services to be supplied by IKON are limited to
those specified in an Order only, and do not include hardware and/or software repair,
maintenance and support services. Purchase of Software upgrades, revisions, bugfixes,
patches and other similar products and services are not included in the Price
unless otherwise specified in the Order and shall be the responsibility and at the
expense of the Customer. |
| 3. |
TERMINATION OF AN ORDER |
| 3.1 |
Either party may terminate contracts formed by an Order at any time with immediate
effect by giving written notice to the other if the other shall present a petition or have
a petition presented for its winding up or shall have a liquidator, receiver or administrative
receiver or administrator appointed of the whole or any part of its
assets or business or an order or resolution is made for its dissolution or liquidation (or
the dissolution or liquidation of any of its affiliates), other than for the purpose of
solvent amalgamation or reconstruction. |
| 3.2 |
Termination of an Order or any part thereof by either party shall not prejudice any
remedy that either party may have, at law or in equity. In the event of such
termination, (a) all amounts owed to IKON for time, expenses and costs incurred by
IKON shall immediately become due and payable and, (b) the Customer shall also pay
IKON for any reasonable costs resulting from such termination. |
| 3.3 |
If IKON is in material breach of any term of the Order the Customer shall: |
| 3.3.1 |
notify IKON in writing (including sufficient detail to permit IKON to identify the breach); |
| 3.3.2 |
co-operate with IKON and permit IKON no less than 30 days in which to make
reasonable commercial efforts to correct the breach; and |
| 3.3.3 |
if, after the expiry of this time period and despite IKON’s commercially reasonable
efforts, IKON has been unable to correct the breach the Customer may terminate an
Order with immediate effect by notice in writing. |
| 3.4 |
If the Customer is in material breach of any term of the Order IKON shall be entitled to
suspend the supply of Products and Services to the Customer until such time as the
Customer has corrected the breach. If the Customer fails to correct any breach within
30 days, IKON may, at its sole discretion, immediately terminate an Order by notice in
writing. |
| 3.5 |
In the event of any material breach by the Customer of any term of the Order that is
incapable of remedy IKON shall be entitled to terminate the Order with immediate
effect by giving notice in writing to the Customer. |
| 4. |
SITE PREPARATION |
| 4.1 |
The Customer shall prepare the Site in accordance with IKON’s requirements to enable
IKON to deliver, and ensure the Customer System is compatible with, the Products and
Services and shall, upon notice from IKON, correct any deficiencies in such
preparation. All costs of preparing and correcting deficiencies in the Site (such as
construction, electrical and cabling) and the Customer System will be the responsibility
of the Customer. If requested by the Customer, IKON shall prepare or inspect the Site
and such work will be charged to the Customer as an Additional Charge. |
| 4.2 |
If during or before Delivery IKON encounters at the Site any conditions which would
result in an increase in the cost of performing its obligations under an Order, then IKON
shall give the Customer’s Project Manager notice of the conditions and of IKON’s
anticipated additional charge under this sub-clause as soon as practicable after
becoming aware of the unforeseen conditions. |
| 4.3 |
It shall be a condition precedent to any Price increase under this clause that IKON
gives written notice. Provided such notice is given by IKON, then any additional cost
incurred by IKON in performing its obligations under the Agreement in consequence of
the conditions specified in such notice, plus a reasonable profit thereon, shall be paid
to IKON as an addition to the Price. |
| 5. |
SITE ACCESS |
| 5.1 |
The Customer shall give IKON (including its employees and sub-contractors, and their
vehicles and equipment) access to the Site at all times to assist Delivery and allow
IKON to perform its obligations set out in an Order. |
| 5.2 |
IKON shall permit the Customer (including its Project Manager, servants and agents) to
enter the Site at all reasonable hours. IKON shall also permit other contractors or
suppliers engaged by the Customer to enter the Site and execute work or deliver
goods at all reasonable hours, but unless the Agreement expressly provides otherwise,
IKON shall not be required to allow them to have such access or facilities as would
unreasonably impede its performance. IKON shall otherwise take full account of and
abide by the Customer’s site and security rules for contractors, which have been
notified to IKON in writing. |
| 6. |
DELIVERY |
| 6.1 |
Each party recognises that, although the dates set forth in an Order are approximate
only, the Delivery of the Products and Services contemplates and requires the
continuing co-operation of both parties. Accordingly, each party shall use its
commercially reasonable efforts to accomplish the tasks required for the Delivery of
the Products and Services on a timely basis. All dates for Delivery of Products and
Services (in whole or in part) shall be extended by a reasonable period if delay is
caused by: |
| 6.1.1 |
any act or omission by the Customer, their servants or agents; or |
| 6.1.2 |
any cause beyond IKON’s reasonable control. |
| 6.2 |
IKON shall arrange at the Customer 's expense for transportation and Delivery of each
Product to the Site substantially in accordance with the Order, it being recognised that
shipping and Delivery dates are approximate only. |
| 6.3 |
The Customer shall be responsible for the accuracy of information provided by it or on
its behalf. If any such information proves to be inaccurate and in consequence IKON
incurs any increase in the cost of Delivery or otherwise in performing its obligations,
then IKON shall be entitled to be paid those costs immediately on invoicing the
Customer. |
| 7. |
PAYMENT |
| 7.1 |
The Customer shall pay twenty five percent (25%) of the Price ("the Deposit") to IKON
in cleared funds within seven days of IKON’s acceptance of the Order unless otherwise
agreed in writing. |
| 7.2 |
IKON shall invoice the Customer the Price of the Products on Delivery. The Price of the
Services and any related charges will be invoiced on Delivery or if applicable, after
IKON's receipt or deemed receipt of an Acceptance Certificate for the respective
project stages (if more than one) and the Customer shall pay IKON the invoiced sum
(including all VAT) within thirty (30) days of the invoice date. |
| 7.3 |
IKON shall make the necessary Price deduction equal to the Deposit payment set out
in Condition above in IKON's final invoice. The Customer may not under any
circumstance set off or seek to set off the deposit payment in Condition 7.1 above or
any other sum against any payment to IKON, other than in the form of the credit
deduction afforded by IKON to the Customer in IKON's final invoice. |
| 7.4 |
The Price does not include the cost of travelling, accommodation or other reasonable
expenses incurred by IKON employees and or sub-contractors in the performance of
the Services. Unless otherwise specified in the Order these will be charged to the
Customer in addition to the Price. |
| 7.5 |
Written notice of any disputed price and/or charge must be received by IKON within
twenty (20) days of the date of the invoice in question or the Customer shall forfeit its
right to dispute such price and/or charge. Such notice shall include the number of the
disputed invoice, the items and amounts disputed and a full description of the reason
for the Customer withholding payment. Notice of any disputed price and/or charge
does not release the Customer from the obligation of paying any remaining balance of
the invoice. Upon resolution of the disputed price and/or charge, IKON may issue a
credit note or if IKON determines that full payment remains due, the Customer shall
pay the total amount outstanding to IKON. IKON reserves the rights to accrue late
payment interest for the disputed Price. |
| 7.6 |
Without prejudice to any other rights it may have, IKON reserves the right to charge
interest at 1.5% per month on all overdue payments, such interest payments to run
from the due date of payment until payment in full is received (both before and after
any judgment) and/or to suspend the provision of Products and Services or Delivery of
Products and Services until payment in full, including any accrued interest, is received.
7.7 The Customer shall indemnify IKON for and against all costs and expenses incurred by
IKON in recovering any sum due to IKON from the Customer in the event that the
Customer fails to pay in accordance with Condition 7.2 above. |
| 8. |
PASSING OF RISK & TITLE |
| 8.1 |
Liability for loss or damage to Products shall pass to the Customer upon Delivery. |
| 8.2 |
Title to Products and all rights in Software (if any) shall be retained by IKON until, and
shall pass to the Customer only upon, payment of the Price in full to IKON. |
| 8.3 |
The Customer agrees that in the event of default in any payment and failure to cure
same within a reasonable time, IKON shall have, in addition to its rights under the law,
the right to repossess such goods without further operation of law and without notice
to the Customer. |
| 9. |
ACCEPTANCE TESTS |
| 9.1 |
If Acceptance Tests are not to be performed, the Customer must notify IKON, in writing,
within 3 days of Delivery of any non-conformity to the Products or Services. If the
Customer does not notify IKON of any non-conformity, the Customer shall be deemed
to have accepted the Products and Services 3 days after Delivery. If the Customer
notifies IKON of a non-conformity, IKON will repair or replace the Products or reperform
the Services in accordance with the Order. |
| 9.2.1 |
If specified in the Order, following the Delivery of the Services, IKON shall, in the
presence of the Customer, carry out the Acceptance Tests to confirm that the Products
and Services are compliant with the Acceptance Criteria. |
| 9.2.2 |
IKON shall then complete an Acceptance Certificate and provide it to the Customer.
The Customer shall return the signed Acceptance Certificate to IKON within 3 days to
acknowledge acceptance of those Products and Services successfully tested in
accordance with the Acceptance Criteria. |
| 9.2.3 |
In the event that a Customer either fails to return the signed Acceptance Certificate to
IKON in accordance with Condition 9.2.2, or fails to notify IKON of any non-conformity
in accordance with Condition 9.2.4, the acceptance date shall be deemed to be 3 days
after completion of the Acceptance Tests. |
| 9.2.4 |
If in the course of the Acceptance Tests the Customer discovers that a Product or
Service does not comply with the Acceptance Criteria, the Customer shall notify IKON
in writing within 3 days and such notice shall include sufficient detail to allow IKON to
identify and address any non-conformity. After investigation and correction by IKON (if
necessary) the Acceptance Tests shall be re-performed immediately at IKON’s request. |
| 10. |
SOFTWARE |
| 10.1 |
If the Products include Software, the Customer shall enter into all Software licences
required by licensors of the Software. |
| 10.2 |
In the event of any conflict between the terms of the applicable Software licensor’s
licence agreement and these Conditions, the Software licensor’s conditions shall
prevail only in relation to the Software. |
| 10.3 |
The Client agrees not to decompile, reverse engineer, disassemble or otherwise
reduce any part of the Software to human-readable form nor permit any third party to
do so. |
| 11. |
PROJECT MANAGER |
| 11.1 |
Each party agrees to designate a project manager (each, a "Project Manager") upon
whose written orders and decisions the other party may rely. |
| 12. |
WARRANTY |
| 12.1 |
IKON warrants that any Products provided pursuant to the Order, at the time of Delivery,
will be free from any and all liens and encumbrances of any party. The
Customer acknowledges that IKON acts as a reseller only of the Products provided to
the Customer under these Conditions, that IKON neither designs, publishes nor
manufactures any of the Products, and that IKON therefore disclaims any and all
warranties. |
| 12.2 |
IKON warrants that Services shall be performed in a professional and workmanlike
manner. |
| 12.3 |
EXCEPT AS EXPRESSLY SET FORTH IN ANY APPLICABLE ORDER, THE PRECEDING IS
IKON’S ONLY WARRANTY CONCERNING THE PRODUCTS AND SERVICES PROVIDED TO
CUSTOMER UNDER THESE CONDITIONS, AND IS MADE EXPRESSLY IN LIEU OF ALL
OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR OTHERWISE. NO WARRANTIES ARE CREATED BY ANY
COURSE OF DEALING BETWEEN THE PARTIES, COURSE OF PERFORMANCE, TRADE
USAGE OR INDUSTRY CUSTOM. |
| 12.4 |
IKON is not responsible for the loss of Customer data. The Customer is responsible for
maintaining current backups of all data. IKON will not be responsible for and any
warranty does not cover infection of any Customer system with a virus. All work
necessary for IKON to restore data or to remove a virus will be charged to the
Customer in addition to the Price. |
| 13. |
IKON’S LIABILITY |
| 13.1 |
IKON can help the Customer to select Products and Services, but the assessment and
selection of the Products and Services remains the Customer’s sole responsibility.
IKON undertakes only that in giving such assistance (if any) it has acted in good faith
and has not been wilfully misleading. |
| 13.2 |
In no event shall IKON’s liability to the Customer for direct damage to the Customer’s
property arising from the supply of Products or Services exceed £3,000,000. |
| 13.3 |
IKON shall not be liable to the Customer for loss of profits, data, goodwill or any other
type of indirect loss, including loss or damage suffered by the Customer as a result of
an action brought by a third party, even if such loss was reasonably foreseeable or
IKON had been advised of the possibility of the Customer incurring the same. |
| 13.4 |
IKON’s liability to the Customer for any direct loss or damage of whatsoever nature
and howsoever caused shall be limited to and in all circumstances other than the
direct damage to the Customer’s property shall not exceed the Price. |
| 13.5 |
IKON shall not be liable for imperfect work caused by any inaccuracies in any
drawings, bills of quantities or specifications supplied by the Customer. |
| 13.6 |
The Customer indemnifies and shall hold IKON harmless against all and any loss,
damage, claim or liability otherwise arising due to the death, personal injury or
damage to the property of employees, agents or IKON's sub-contractors whilst on the
Customer’s premises for the purposes of provision of the Services and which arise due
to the negligence, acts or omissions of the Customer, its agents or employees. |
| 13.7 |
IKON has calculated the Price on the basis that it is not responsible for any other risks. |
| 14. |
FORCE MAJEURE |
| 14.1 |
IKON may, without liability, delay performance or cancel any Order on account of force
majeure or other circumstances beyond its control including, but not limited to, acts of
God, war, riot, fire, earthquake, explosion, flood, strike, lockout, injunction or
telecommunications, electrical or source of supply failure, or the unavailability of
services, personnel, products or materials. |
| 15. |
SOLICITATION |
| 15.1 |
During the term of the Order and for a period of one (1) year thereafter, the Customer
shall not: |
| 15.1.1 |
offer employment to any employee or former employee of IKON who in the previous 12
months was concerned with the supply of Products or Services to the Customer; or |
| 15.1.2 |
attempt to directly or indirectly induce any employee of IKON to terminate his or her
employment with IKON. |
| 15.2 |
In the event of a breach of this Condition 15, the Customer shall, within ten (10) days
of such breach, pay IKON, in addition to any other fees required under these
Conditions, liquidated damages in an amount equal to fifty percent (50%) of the total
remuneration accruing to IKON by reason of that employee’s provision of services and
availability to provide services on IKON’s behalf over the last twelve (12) months of his
or her employment by IKON. |
| 15.3 |
In the alternative, in the event of a breach of this Condition 15, money or damages
may not be an adequate remedy, and, therefore, in addition to any other legal or
equitable remedies, IKON shall be entitled to obtain an injunction against such breach. |
| 15.4 |
The obligations set forth in this condition are independent covenants and shall
continue after the Order is completed or terminated for any reason. |
| 16. |
CONFIDENTIALITY |
| 16.1 |
Confidential Information shall mean all information identified in writing as being
confidential, which is obtained from the Customer by IKON, or from IKON by the
Customer or is generated by IKON in connection with the Order, other than information: |
| 16.1.1 |
which becomes generally available in the public domain other than by the
unauthorised actions of either of the parties to the Order; or |
| 16.1.2 |
which has or may come into the possession of one party otherwise than in breach of a
duty of confidence to the other party; or |
| 16.1.3 |
which is already in the possession of a party with the right to disclose. |
| 16.2 |
IKON shall not, without the previous written consent of the Customer, use, publish or
disclose to any person, nor cause nor permit any of its servants, agents or subcontractors
to use, publish or disclose any Confidential Information otherwise than for
the performance of its duties under the Order. |
| 16.3 |
The Customer shall not, without the previous written consent of IKON, use, nor cause
nor permit any of its servants or agents to use any Confidential Information received
by the Customer otherwise than for the operation of the Products and associated
facilities. |
| 17. |
ASSIGNMENT |
| 17.1 |
The Customer shall not, without IKON’s prior written consent, assign any benefit or
obligation under the Order to any other person in whole or in part. |
| 17.2 |
IKON may, subject to notifying the Customer in writing, subcontract the performance of
any of its obligations under an Order, as IKON considers expedient. The subcontracting
by IKON of any of the benefits or obligations under the Order in whole or in part shall
not relieve IKON of its responsibility for the performance of its obligations to the
Customer. |
| 18. |
PROJECT CHANGES |
| 18.1 |
All changes involving the addition or deletion of Products or Services and other change
affecting the Price shall be made as follows: |
| 18.1.1 |
The Project Manager of the party requesting the change shall provide written notice of
the proposed change to the other party’s Project Manager; |
| 18.1.2 |
If a change is acceptable to IKON, IKON shall prepare a Change Order Form ("Change
Order"). The Change Order shall specify any alteration in the program of work and/or
the Price; |
| 18.1.3 |
IKON shall then submit the Change Order to the Customers Project Manager for
written approval. Upon IKON’s receipt of the approved Change Order the change shall
be deemed made and the relevant Order amended accordingly. |
| 19. |
GENERAL PROVISIONS |
| 19.1 |
These Conditions, including Orders entered into from time to time, set forth the entire
understanding between the parties and supersede all prior agreements, arrangements
and communications, whether oral or written, with respect to the supply of Products
and Services. Any purchase order issued by the Customer shall be for its administrative
purposes only and none of its terms and conditions shall be of any force or
effect against IKON. Each Order, except as its terms otherwise expressly provide, shall
be a complete statement of its subject matter and shall supplement these Conditions
for the purposes of that Order only. No other agreements, representations or
warranties, whether oral or written, shall be deemed to bind the parties with respect to
the subject matter of these Conditions. Neither these Conditions nor any Order may be
modified or amended except by the mutual written agreement of the parties. |
| 19.2 |
The waiver by IKON of a breach or default in any of the provisions of the Order by the
Customer shall not be construed as a waiver of any succeeding breach of the same or
other provisions; nor shall any delay or omission on the part of either party to exercise
or avail itself of any right, power or privilege that it has or may have hereunder operate
as a waiver of any breach or default by the other party. |
| 19.3 |
The Parties agree that all rights afforded to any third parties by operation of the
Contracts (Rights of Third Parties) Act 1999 are expressly excluded under these
Conditions. |
| 19.4 |
Any notice to be served shall be in writing and served upon the recipient at its address
set out in the Order, either by hand or by first class post or facsimile transmission and
shall be deemed served 48 hours after posting if sent by post, on delivery if delivered
by hand, on receipt of a successful facsimile transmission sheet if confirmed in writing
within the next two working days. |
| 19.5 |
Save as otherwise expressly provided all amounts stated by IKON are expressed
exclusive of value added tax ("VAT") and any VAT arising in respect of any supply made
under these Conditions shall be paid to IKON by the Customer in addition to any other
consideration for the Products and /or Services. |
| 19.6 |
Headings to clauses in these Conditions are for the purpose of information and
identification only. |
| 19.7 |
In the event of a conflict between an Order and these Conditions these Conditions shall
prevail. |
| 19.8 |
These Conditions shall be governed by and construed in accordance with English law
and the parties submit to the non-exclusive jurisdiction of the English court. |
