ROCHESTER & ASSOCIATES LIMITED

TERMS AND CONDITIONS

Your attention is called to clause 16 in Part 4 which explains how Rochester & Associates limits its liability.

These terms and conditions are in 4 Parts:

Part 1 contains definitions;

Part 2 deals with IT Services;

Part 3 deals with the supply of Equipment;

Part 4 contains those terms which apply to all contracts with our customers.

Our Customer IT Services number is 08456 340 599. Alternatively, you can contact us on problems@randaltd.com. Please note that we sometimes monitor or record telephone calls for training purposes and our normal business hours are Monday to Friday (excluding Bank Holidays) 09:00 to 17:00.

PART 1 – DEFINITIONS

In these terms and conditions:

(1) “Additional Equipment” means any equipment in addition to or substituted for the Equipment during the term of the Agreement.

(2) “Agreement” means the agreement between Rochester & Associates and the Customer made subject to these terms and conditions.

(3) “Charges” means the amount payable by the Customer to Rochester & Associates for the supply of any IT Services which are not included in an IT Maintenance Agreement.

(4) “Commencement Date” means the date on which an Order Confirmation Form is sent by us to you by email.

(5) “the Customer” or “you” means the person named as the Customer in an Order Confirmation Form.

(6) “Equipment” means any equipment (including software) supplied by us to you as part of any Agreement.

(7) “Infrastructure” means all or any of the supply of electricity or other utilities, the provision of services by any cloud service provider, telephone or other communication network providers, the condition of your premises and your existing equipment.

(8) “Initial Term” means the period specified in an Order Confirmation Form Provided that in the case of the provision of IT Services the Initial Term shall be a period of 12 months from the Commencement Date unless during the first 3 months from the Commencement Date either party shall give notice to terminate that Agreement or that part of an Agreement.

(9) “IT Maintenance Agreement” whichever of our hardware IT support packages you have selected as described in an Order Confirmation Form.

(10) “IT Services” those IT services which we provide to you under an IT Maintenance Agreement and (if applicable) those IT services which we may agree to provide to you in addition to the services provided under an IT Maintenance Agreement.

(11) “Order Confirmation Form” means our order confirmation form describing the Customer and the Equipment or IT Services and the Price.

(12) “Price” means the price payable for the products and services we supply as such price is set out in an Order Confirmation Form.

(13) “Software” means the software supplied to you by Rochester & Associates.

(14) “Rochester & Associates”, “us” or “we” means Rochester & Associates Limited (Company Number 03500739) whose registered office is at 836 Leeds Road, Bradford, West Yorkshire BD3 9TX.

(15) “VAT” means value added tax or any tax which may replace VAT.

PART 2 – IT SERVICES

  1. IT Services – General

1.1 Rochester & Associates will provide you with the IT Services as described in an IT Maintenance Agreement subject to the provisions of this Agreement. Rochester & Associates may vary how the IT Services are provided if Rochester & Associates wishes to maintain or improve their quality or needs to do so in order to comply with any applicable law or regulation or the terms of supply of any third party. For the avoidance of doubt Rochester & Associates does not maintain any Software.

1.2 Rochester & Associates shall after the Commencement Date provide a maintenance engineer to carry out during its normal business hours any maintenance or repairs of the Equipment that may be reasonably required as a result of fair wear and tear arising from the proper operation of the Equipment by the Customer Provided that the cost of replacing any equipment shall be borne by the Customer unless such equipment is then still under the warranty described in clause 7.3.

1.3 Any maintenance repairs or replacements or customer visits caused other than by fair wear and tear or carried out at the Customer’s request may be carried out by us at the Customer’s expense at our current charging rates. The targeted response times during our normal working hours for faults are minor faults sixteen working hours and critical fault four working hours. We will endeavour, but not guarantee to achieve these guideline timescales.

1.4 You will provide such access to your premises at such times as we reasonably require.

1.5 You acknowledge that by reason of your existing equipment or by reason of changes in technology the IT Services may not be capable of delivery or the provision of the IT Services may be impaired in which event we may cancel the provision of the IT Services unless you agree at your expense to update or replace your existing equipment (with our consent as to the nature and manner of installation of such new equipment) so that your equipment is compatible with the provision of the IT Services.

1.6 You acknowledge that the provision of any IT Services cannot be guaranteed to be fault free if there is some failure of Infrastructure or otherwise and that if it is necessary to make good any such failure you shall be responsible for the cost of doing so.

1.7 If at any time a survey of your premises by us or by any other supplier of Infrastructure reveals the need to carry out work (and that work is not specified in an Order Confirmation Form) then the cost of that work shall be payable by you in addition to the Price.

1.8 We may adjust the Price if the Equipment is altered, upgraded or added to and those charges shall be included in the amount of the instalments payable in the months after the date of such alteration, upgrade or addition.

1.9 You agree to enable the supply of IT Services by remote access to your computer equipment and acknowledge that if such remote access cannot be obtained by us (whether by reason of a failure of Infrastructure or otherwise) we may not be able to provide the IT Services in a timely manner or at all.

  1. Software

2.1 The Customer acknowledges that it is the Customer’s responsibility to train its staff and other users of the Equipment in the proper use of the Equipment and the security of the Customer’s computer system and of any data (whether data of the Customer or of any third party) stored on the Customer’s computer system.

2.2 The Customer acknowledges that it is for the Customer to install and keep up to date anti-virus and other security software to protect the Equipment and that the Customer is licensed to use such software.

2.3 It shall be a condition of us providing any IT Services or supplying any Equipment that you have complied with clause 2.2.

2.4 If our audit of your software shows the need to install new or updated anti-virus or other security software such software must be installed by us before we can provide any other IT Services or supply the Equipment. In such circumstances it shall be your responsibility to ensure that we have access to all devices and equipment which is or may be connected to your computer system and which is used at your premises or by remote access by you or by any of your employees or others having access to your computer system.

2.5 Unless included in an Order Confirmation Form, the cost of the installation of such anti-virus or other security software shall be payable to us in addition to any other cost specified in an Order Confirmation Form.

2.6 It shall be your responsibility to ensure that your computer system is not capable of being adversely affected by any remote access we gain to the Equipment.

2.7 If you fail to allow us to install any patch or software upgrades within one month of us notifying you that any patch or upgrade is available for installation, we may terminate this agreement by giving one month’s written notice to you.

  1. The Customer’s Responsibilities and Liabilities

3.1 The Customer shall notify Rochester & Associates either orally or in writing as soon as possible of any faults in the Equipment or any work or maintenance that may be necessary. We may at our option repair at our current charges faults or damage that has arisen because of the failure of the Customer to notify us promptly.

3.2 The Customer shall not allow the Equipment to be moved, interfered with or tampered with and shall at all times comply with all reasonable advice given by us in relation to the use and care of the Equipment. We may at our option repair at our current charges faults or damage that have been caused by such moving interference or tampering or by any failure by the Customer to comply with our directions.

3.3 If any maintenance, repair, replacement, alteration or addition is made to the Equipment other by than Rochester & Associates, we may terminate the IT Maintenance Agreement with immediate effect by giving the Customer written notice.

3.4 The Customer shall at its expense comply with all statutory requirements, bylaws, obligations, regulations, recommendations or instructions relating to the use or testing of the Equipment. The Customer shall obtain and pay for any items necessary for the operation of the Equipment. Suitable electric supplies where needed shall be provided and maintained by the Customer at its expense.

3.5 The Customer shall give Rochester & Associates and its representatives unhindered access to personnel (if requested) and to the Equipment and shall at its expense make available mains electric supply and any other facilities and co-operation as may be necessary for the proper and prompt maintenance or repair of the Equipment under this agreement.

3.6 The Customer shall maintain an environment suitable to support efficient operation of the Equipment. The Customer shall be responsible for damage caused by not maintaining a suitable room operating temperature for the Equipment or any Software.

3.7 Except as otherwise expressly provided in this agreement, the Customer shall be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Rochester & Associates, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

3.8 If the Customer fails to observe the provisions of this Part 2 of these terms and conditions, we may terminate such part of the Agreement with immediate effect by giving the Customer written notice and may adjust the Price accordingly or if we choose, do such things as may be required to make good such breach (if capable of remedy) as we think necessary and charge you the cost of doing such thing or things.

  1. Fault Reporting

Any fault must be reported by you to our customer services department by email to problems@randaltd.com where it will be dealt with in accordance with our fault repair service. If we agree to correct a fault that is not our responsibility, or if no fault is found, Rochester & Associates may charge you for work carried out by Rochester & Associates at its applicable engineer’s rates.

  1. Duration and Cancellation

5.1 All IT Services are provided for the Initial Term. The term of this Agreement will be automatically renewed for a further period of 12 months after the end of the Initial Term and for successive further periods of 12 months after that unless not less than 30 days before the end of the Initial Term or not less than 30 days before the end of any subsequent 12 months period you or we give notice to terminate this Agreement at the end of the relevant period. If the Agreement continues beyond the Initial Term then the references to the Initial Term in these terms and conditions shall be deemed to be references to the term created by the operation of this clause 5.1.

5.2 If you cancel any IT Services before the end of the Initial Term (other than at the end of the 3 months period described in the definition of “Initial Term”) you will pay us:

(1) the balance of the Price then due for any services payable by monthly instalments less a discount of 2.5%;

(2) an amount equal to any Charges for any IT Services provided by Rochester & Associates in addition to the services provided under an IT Maintenance Agreement and any amount charged to Rochester & Associates by any third party as a result of such termination.

  1. Price

6.1 The Price payable under an IT Maintenance Agreement is fixed during the Initial Term and shall be payable monthly in advance by standing order by equal monthly instalments during the Initial Term in the amounts specified in an Order Confirmation Form the first of such instalments to be paid on the Commencement Date. If our agreement with you shall continue after the end of the Initial Term then you shall continue to pay monthly sums equal to the amount of such payments payable by you before the end of the Initial Term.

6.2 We may vary the price for the provision of IT Maintenance Agreement once in every year. If any variation of price is not agreed by you we may terminate the provision of the IT Services by giving not less than 30 days written notice to that effect.

6.3 If during the Initial Term any Additional Equipment shall be added to the IT Maintenance Agreement then the Price shall be amended to account for such Additional Equipment.

6.4 Where a standing order is unpaid due to insufficient funds or cancellation, a twenty five pounds administration charge will be included on your next monthly bill.

6.5 If we provide any Services in addition to those specified in an IT Maintenance Agreement then the cost of such Services shall be payable no later than 14 days after the date of invoice.

6.6 The Price and all other Charges (if any) (whether referred to in the Order Confirmation Form, this Agreement or elsewhere) are subject to VAT at the prevailing rate.

PART 3 – SUPPLY OF EQUIPMENT

  1. Supply

7.1 You must decide before ordering if the specified Equipment is suitable for your needs.

7.2 We will order the Equipment specified in the Order Confirmation Form only on receipt of cleared funds from you.

7.3 All Equipment supplied to the Customer will be with the benefit of the manufacturer’s warranty and are subject to their own specifications.

7.4 Equipment is subject to availability and may vary from those previously quoted. If you require delivery of any Equipment earlier than the manufacturer’s standard delivery times then, if such earlier delivery can be obtained, an additional charge for urgent delivery will be payable by you.

7.5 Risk in the Equipment shall pass to the Customer on delivery to the premises specified in an Order Confirmation Form.

  1. Delivery & Installation

8.1 Rochester & Associates accepts responsibility for the installation, if instructed, and operation of the Equipment until the end of the warranty period (if any) stated by the manufacturer.

8.2 Rochester & Associates does not accept responsibility or any increase in costs due to any supplier failing to meet their supply obligations or estimated supply timescales. If Rochester & Associates incurs any additional costs, the right is reserved to pass these on to you.

  1. Property in the Equipment

9.1 The Equipment shall remain the sole property of Rochester & Associates and title to the Equipment shall not pass to the Customer until the Customer has paid all monies due to Rochester & Associates and the Customer acknowledges that until such payment is made in full it is in possession of the Equipment only as a fiduciary for Rochester & Associates.

9.2 Until title to any Equipment passes to the Customer, the Customer authorises Rochester & Associates to enter any premises where the Equipment is located to enable Rochester & Associates to recover the Equipment.

9.3 The Customer will not remove any serial numbers, badges or other means of identifying the Equipment.

  1. Prices & Payment

Unless otherwise agreed in writing by a Director of Rochester & Associates the Customer will pay the Price in cleared funds on the day following the date of an Order Confirmation Form.

  1. Returns

11.1 If the Equipment does not arrive or is incomplete or damaged when you open it you must tell our IT Services Department within 1 day of receipt or expected delivery.

11.2 We will accept returns of faulty Equipment within 7 days of delivery. Equipment must be returned in its original packaging.

11.3 If you change your mind we may take Equipment back at our discretion if it is unopened, unused and in perfect condition.

11.4 We do not accept returns of any software.

PART 4 – GENERAL

  1. Payment

12.1 The Price for any Equipment shall be payable in accordance with clause 7.2. The Price for an IT Maintenance Agreement and for IT Services shall be payable in accordance with clause 6.1.

12.2 If any payment is not made in cleared funds by the due date for payment then in addition to any other rights and remedies available to it (including without limitation the right to suspend the IT Services in accordance with clause 14, Rochester & Associates reserves the right to terminate the Agreement or any other agreement we have with you.

12.3 You will be notified of any problems with your payments or standing order instructions.

12.4 Payments are to be made by you without set-off or deduction and if you fail to pay any sum due, we shall be entitled to:

(1) charge interest on the amount due at the rate of four percent above the base lending rate from time to time of Lloyds Bank plc such interest to be calculated from the due date for payment until receipt by us of cleared funds; and

(2) immediately terminate any broadband or email service provided by us.

12.5 Cancellation of a standing order does not constitute notice of cancellation or termination of your agreement with us.

12.7 Rochester & Associates reserves the right to perform a credit check on you with no prior notice, and to pass your credit history with Rochester & Associates on to any credit agency and/or to the Court.

12.8 Rochester & Associates reserves the right to request from you at any time a deposit payable on demand if in our view there is any deterioration in your financial standing.

  1. Your Responsibilities

13.1 You will not allow an alternative supplier to provide services the same as or similar to our IT Services.

13.2 If appropriate we will inspect your premises prior to installation to ensure that your premises are suitable for installation of the Equipment. You will be responsible for providing at your own cost the site conditions Rochester & Associates recommends for the Equipment or provision of any service by Rochester & Associates including electricity supply connection points and computer terminals. Rochester & Associates will not be responsible for reinstating the your premises after any installation work has been carried out, other than where damage has been caused by Rochester & Associates or by those for whom Rochester & Associates is responsible. You acknowledge that if such work is not carried out the Equipment may not perform to the manufacturer’s specification. You further acknowledge that any inspection carried out by us is not an audit of any Infrastructure or of your computer system and we do not carry out electrical safety checks as part of such inspection.

13.3 You will ensure that all your equipment meets all legal and regulatory requirements and is safe for use.

13.4 You will ensure that your premises are safe and secure and will indemnify Rochester & Associates for the consequences of any death or personal injury to any employee or sub-contractor of Rochester & Associates working at your premises or for the loss of or damage to any equipment used or left or stored on your premises by Rochester & Associates or its employees or sub-contractors.

13.5 You will notify us of any change by you of your email address, postal address, telephone number or other contact information. You acknowledge that any failure on your part to provide up to date contact information may result in the loss by you of certain IT Services.

  1. Suspension of IT Services

Rochester & Associates may suspend the IT Services (without being liable to compensate you) in whole or part:

(1) in the event of an emergency;

(2) to comply with a request from a government or other competent authority;

(3) to maintain the quality of our services;

(4) if you fail to pay or if Rochester & Associates believes that you may fail to pay any amount due to Rochester & Associates (whether or not we have issued you with an invoice);

(5) an event occurs which is a Relevant Event described in clause 17.1;

(6) if you break any part of any agreement with us.

  1. Termination

15.1 Our agreement with you may be ended immediately by written notice:

(1) by you if Rochester & Associates breaks any term of this Agreement, which after written notice has not been rectified within fourteen days;

(2) by Rochester & Associates if you stop trading or becomes insolvent or are wound up;

(3) by Rochester & Associates if you fail to comply with clause 2.2 or if you break any other term of this Agreement.

15.2 On termination of this Agreement for whatever reason and subject as provided in clause 5.2(1), you will immediately pay any other outstanding monies due to us.

15.3 This Agreement will continue in full force and effect to the extent that any of its terms remain to be observed or performed.

  1. Liability

16.1 Rochester & Associates will not be liable:

(1) for any harm to your business, loss of revenues, loss of anticipated savings, loss or corruption of data or information, lost profits or other indirect consequential or special losses;

(2) to you or to any third party for any losses suffered by that third party;

(3) for any failure, defect or other consequence of any equipment forming part of your computer system not being secure by reason of being hacked or the subject of any virus, malware or other third party interference given that the security of your computer system is not part of the IT Services;

(4) to you for any failure on your part to comply with your obligations in this Agreement;

(5) for any failure on your part to use any Equipment or software or your computer system in accordance with the relevant manufacturer’s instructions or in accordance with any guidance issued by us;

(6) if you do not permit us to install any patch or software upgrade in accordance with clause 2.7.

16.2. Without prejudice to clause 16.1:

(1) our liability in contract or tort, misrepresentation, restitution or otherwise arising from any default by us under or in connection with this Agreement (other than Part 3 of this Agreement (supply of Equipment)) shall be limited in the case of the provision of services under an IT Maintenance Agreement to a refund of one monthly instalment of the Price and in the case of any other IT Services to the amount paid by you to us.

(2) if any Equipment found to be defective during the manufacturer’s warranty period or during the warranty period for that Equipment (which may be less than 12 months for certain types of Equipment or for refurbished Equipment) our total liability to the Customer in respect of any Equipment supplied in accordance with this Agreement shall not exceed the price of that Equipment.

16.3 Rochester & Associates does not seek to limit its liability for death or personal injury resulting from the negligence of Rochester & Associates, its employees or others for whom it is responsible.

16.4 Rochester & Associates shall not be liable for the consequences of any failure of any of the Infrastructure or for any damage caused by electrical surges through the power supply or power surges caused by external influence such as that caused by lightning strike or similar.

16.5 The Customer acknowledges that the Price reflects the limitations contained in this clause 16. The Customer shall effect insurance cover if available in respect of the Equipment and in respect of all risks relating to the IT Services which are not covered by this Agreement or for the liabilities excluded under this clause 16.

16.6 To be valid any claim against us must be notified to us no later than two years after the date of supply of any Equipment or of any service.

16.7 If any of the provisions of clause 16 are not valid or enforceable those provisions shall be deemed to be excluded to the intent that the remaining provisions shall be valid and enforceable.

  1. Force Majeure

17.1 Neither Rochester & Associates nor you will have to compensate the other for any detrimental event beyond the other’s reasonable control including (without limitation) any act of God, reduction or failure of power supply or telecommunications operators and suppliers or their equipment including access lines or other Infrastructure, act or omission of national or local government authority, war, act of terrorism, military operation, riot or delay or employee dispute (a “Relevant Event”).

17.2 If a Relevant Event shall prevent the provision by us of the IT Services for more than 3 months then we may terminate this Agreement.

  1. Notices

16.1 Any notice required to be served under this Agreement must be in writing. The address for service on Rochester & Associates (subject to any change notified by Rochester & Associates to you) is the address stated on the Order Confirmation Form. Your address for service is the address set out on the Order Confirmation Form or (if different) on the most recent invoice we have sent to you or such address as has been notified to Rochester & Associates in accordance with this clause.

18.2 A notice will be treated as served as follows:-

(1) in the case of delivery by hand, on the day of delivery except that where that day is not a Working Day, or the delivery is made after four pm, then it will be treated as served on the next Working Day;

(2) in the case of delivery by registered post or recorded delivery, on the date of delivery as proved by the proof of delivery advice issued by Royal Mail (or such other postal service providing a registered or recorded delivery service in place of or in addition to Royal Mail).

In this clause “Working Day” means Monday to Friday but does not include Bank Holidays.

  1. General

19.1 You may not transfer this agreement or any rights under it without our prior written consent.

19.2 No Agreement shall exist between you and us until we send you an Order Confirmation Form.

19.3 All goods supplied or work done by us for you will be subject to these terms and conditions whether or not specifically referred to in any Agreement

19.4 Rochester & Associates may transfer all or any of its rights under this Agreement.

19.5 Rochester & Associates may engage such sub-contractors or agents to provide the IT Services as it shall determine.

19.6 If any provision or condition of this Agreement shall be invalid or unenforceable, the remaining terms shall continue to apply.

17.7 Any variations (other than changes made in accordance with this agreement) shall not be effective unless in writing and signed by you and by a director of Rochester & Associates

19.8 If there is any inconsistency between this agreement and the Order Confirmation Form, the Order Confirmation Form shall take precedence.

19.9 Any failure by Rochester & Associates to enforce any right shall not be deemed a waiver of any such right.

19.10 If you fail to carry out your responsibilities set out in this agreement in a timely and efficient manner we may adjust the Price or any agreed timetable or delivery schedule as reasonably necessary.

19.11 Unless agreed otherwise by us the IT Services will only be provided during our normal business hours which are Monday to Friday (excluding Bank Holidays) 09:00 to 17:00.

19.12 This Agreement is governed by English law and the parties agree to submit to the exclusive jurisdiction of the Courts in England.

19.13 This Agreement constitutes the entire agreement between the parties and there are no agreements or understandings between them other than those in this Agreement and in the Order Confirmation Form which shall be deemed to be part of this Agreement. For the avoidance of doubt it is agreed that any proposal made by Rochester & Associates does not form part of any Agreement.

19.14.1 Headings are for ease of reference and shall not affect the construction of these terms and conditions.

19.14.2 Unless otherwise stated, references to clauses are to the clauses in these terms and conditions.

19.14.3 The singular shall be deemed to include the plural and vice versa and reference to one gender shall include reference to the other two.

19.14.4 If the Customer comprises more than one person then the obligations of the Customer shall be joint and several.

Reviewed 9th October 2018