Terms & Conditions
Netserve Terms and Conditions of Service
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE
PROVISIONS OF SECTION 8 (LIMITATION OF LIABILITY), SECTION 4 (RISK OF DATA LOSS
– BACK UP), AND SECTION 7.6 (NETSERVE’S RIGHTS TO WITHHOLD ACCESS TO THE
CUSTOMERS DNS AND EMAIL AND OTHER MANAGED SERVICE ACCOUNTS UNTIL PAYMENT IS
RECEIVED FOR THE SERVICES).
BEFORE THE CUSTOMER ORDERS ANY SERVICES (INCLUDING SUPPORT
SERVICES) IN RESPECT OF ANY ITEM, IT IS THE CUSTOMER’S RESPONSIBILITY TO CHECK
WHETHER THIS WILL INVALIDATE ANY WARRANTY OR GUARANTEE PROVIDED BY THE
MANUFACTURER OR SUPPLIER OF THE ITEM.
These are Netserve’s terms applicable to all services
provided by it. Different terms are applicable to hardware purchases – if you
are purchasing hardware, please consult Netserve’s hardware conditions of sale.
Basis of contract
The Order constitutes an offer by the Customer to purchase Services in
accordance with these Conditions.
The Order shall only be deemed to be accepted when Netserve issues written
acceptance of the Order (“Order Confirmation”) at which point and on which date
the Contract shall come into existence (Commencement Date).
Any samples, drawings, descriptive matter or advertising issued by Netserve,
and any descriptions or illustrations contained in Netserve’s catalogues or
brochures, are issued or published for the sole purpose of giving an
approximate idea of the Services described in them. They shall not form part of
the Contract or have any contractual force.
These Conditions apply to the Contract to the exclusion of any other terms that
the Customer seeks to impose or incorporate, or which are implied by trade,
custom, practice or course of dealing.
Any quotation given by Netserve shall not constitute an offer, and is only
valid for a period of 14 days from its date of issue
The services provided by Netserve are designed for business customers only. By
agreeing to these Conditions the Customer confirms that it is a trading
business, and is not purchasing any goods or services as a consumer.
Netserve may from time to time recommend third party software or other products
and services for the Customer’s consideration. Netserve makes no representation
or warranty whatsoever regarding such products and services. The Customer’s use
of any products and services not provided by Netserve is governed by the terms
of Customer’s agreement with the provider of those products and services, and
is at Customer’s sole risk. Netserve is not responsible in any way for the
third party product’s performance, features nor failures.
Supply of Services
Netserve shall supply the Services to the Customer in accordance with the
Service Description and Order Confirmation in all material respects.
Netserve shall use all reasonable endeavours to meet any performance dates
specified in the Order or Service Description, but any such dates shall be
estimates only and time shall not be of the essence for performance of the Services.
The Customer agrees that Netserve may install remote monitoring software tools
on Supported Items for purposes of providing the Support Services. Netserve
will have no obligation under the Contract in respect of any Supported Item in
the event that Customer disables or interferes with the operation of the tool
in respect of such Supported Item.
Netserve reserves the right to amend the Service Description if necessary to
comply with any applicable law or regulatory requirement, or if the amendment
will not materially affect the nature or quality of the Services, and Netserve
shall notify the Customer in any such event.
Netserve warrants to the Customer that the Services will be provided using
reasonable care and skill.
The Customer shall:
(a) ensure that the
terms of the Order are complete and accurate;
(b) co-operate with
Netserve in all matters relating to the Services;
(c) provide Netserve,
its employees, agents, consultants and subcontractors, with access to the
Customer’s computing devices and systems, premises, office accommodation and
other facilities as reasonably required by Netserve;
(d) provide Netserve
with such information and materials as Netserve may reasonably require in order
to supply the Services, and ensure that such information is complete and
accurate in all material respects;
(e) prepare the
Customer’s premises and systems for the supply of the Services;
(f) obtain and
maintain all necessary licences, permissions and consents which may be required
for the Services before the date on which the Services are to start;
(g) comply with all
applicable laws, including health and safety laws;
(h) keep all hardware,
materials, equipment, documents and other property of Netserve (Netserve
Materials) at the Customer’s premises in safe custody at its own risk, maintain
Netserve Materials in good condition until returned to Netserve, and not
dispose of or use Netserve Materials other than in accordance with Netserve’s
written instructions or authorisation;
(i) comply with
any additional obligations as set out in the Service Description;
(j) Ensure that
throughout the Contract it has in place business continuity arrangements which
enable a seamless transition to new computer systems in the event of any
sustained unavailability of its systems.
Netserve’s performance of any of its obligations under the Contract is
prevented or delayed by any act or omission by the Customer or failure by the
Customer to perform any relevant obligation (Customer Default):
(a) without limiting or
affecting any other right or remedy available to it, Netserve shall have the
right to suspend performance of the Services until the Customer remedies the
Customer Default, and to rely on the Customer Default to relieve it from the
performance of any of its obligations in each case to the extent the Customer
Default prevents or delays Netserve’s performance of any of its obligations;
(b) Netserve shall not
be liable for any costs or losses sustained or incurred by the Customer arising
directly or indirectly from Netserve’s failure or delay to perform any of its
obligations as set out in this section 3.2; and
(c) the Customer shall
reimburse Netserve on written demand for any costs or losses sustained or
incurred by Netserve arising directly or indirectly from the Customer Default.
The Customer acknowledges that Netserve is not responsible for adherence to any
regulatory or legal requirements applicable to the Customer in respect of the
rendering of the Services. For example, any professional medical, legal
requirements or financial services regulatory requirements regarding the
security, storage and transmission of information. To the extent necessary and
appropriate, Netserve and the Customer shall discuss any additional requirements
of the Customer in this regard, which will be subject to the agreement of any
applicable additional charges.
Risk of Data Loss – Back-up
The Customer acknowledges that Services comprising hosting, data transfer or
migration, or upgrades to software, involve an inherent risk of corruption,
loss or deletion of data on the Customer’s computing equipment. The Customer
therefore agrees that it shall keep full and up-to-date secure offsite backup
copies of the data on any devices in respect of which the Services are
provided, in accordance with best industry practice.
The Customer acknowledges that compatibility issues, defects in software or
installation processes may result in the failure of a device or an item of
software during the provision of the Services which comprise upgrading or
maintenance of software. If an item of hardware or software fails during an
upgrade, or support or maintenance event, Netserve shall not be responsible for
any loss or corruption of Customer data.
the event of any loss or corruption of data during upgrade or maintenance
Services, and Netserve has access to any back-ups of such data, Netserve shall
use all reasonable endeavours to effect a restoration of the data from such
the extent that the Services comprise Support Services in respect of software,
the Support Services Terms annexed to these Conditions shall additionally
Support Services do not comprise the replacement of any consumable items such
as printer ink.
the Customer agrees a Contract with Netserve for the provision of Support
Services, Netserve will respond to any request made by the Customer for Support
Services within 1 Business Day of a request made by email to [email protected], or
acknowledge it by phone. Except as set out in the Support Services Terms,
Netserve will use reasonable endeavours to address and resolve the request as
soon as reasonably practicable. For the avoidance of doubt, Netserve shall have
no obligation to address, remediate or resolve any request within any
particular period. No guarantee is made by Netserve as to the time necessary to
address or resolve any request.
performing the Support Services in respect of any Supported Item which is
hardware, Netserve shall use reasonable endeavours to source spare parts
required to restore the Supported Item to good working order. Netserve shall
have the right to charge the Customer for the spare parts.
Third Party Software
the event Netserve distributes any open source software to the Customer as part
of the Services (for example software licensed under the Apache, GPL, MIT or
other open source licenses) then such open source software is subject to the
terms of the applicable open source license. To the extent there is a conflict
with the Contract the terms of the applicable open source license shall
Netserve may provide third party software and related services for the
Customer’s use as part of the Services or to assist in its delivery of the
Services (“Third Party Software”). Some Third Party Software is subject to the
terms of an end user licence notified to the Customer by or on behalf of
Netserve (“EULA”). Unless otherwise permitted by the terms of any applicable
EULA, the Customer may not: (i) assign, grant or transfer any interest in the
Third Party Software to another individual or entity; (ii) reverse engineer,
decompile, copy or modify the Third Party Software; (iii) modify or obscure any
copyright, trademark or other proprietary rights notices that are contained in
or on the Third Party Software; or (iv) exercise any Intellectual Property
Rights in the Third Party Software except as set out in a EULA. The Customer
may only use Third Party Software provided for its own internal business use as
part of the Services, subject to any additional restrictions identified in the
EULA. The Customer is prohibited from using for its own purposes any Third
Party Software which Netserve installs in order to assist its provision of the
Services (such as any remote diagnostic or monitoring tools).
list of EULAs applicable to Third Party Software is set out in the quotation
provided to the Customer.
Additionally, the terms applicable to ‘Messagestream’ and other Services
provided by means of the software and services of Giacom World Network Ltd
shall be subject to the additional terms set out at the back of this document
The Customer acknowledges that Netserve is not the agent, representative,
developer or the licensor of the Third Party Software. Netserve makes no
representation or warranty regarding Third Party Software except that Netserve
has the right from the provider or licensor of the Third Party Software to use
or provide the Third Party Software in accordance with these Conditions.
is the Customer’s sole responsibility to agree to and enter any licence with
the owner of the Intellectual Property Rights in the Third Party Software. As
part of the Service, Netserve may advise in relation to general principles as
to licensing, and place orders for licences on the Customer’s behalf, but
Netserve cannot police the Customer’s compliance. The Customer acknowledges
that it shall ensure that it shall have sufficient licences. The Customer will
indemnify Netserve in respect of liability or losses Netserve incurs as a
result of Customer’s failure to adhere to any applicable Third Party Software
Nothing under the Contract shall be construed as having the effect of
assigning, transferring, or dealing with any copyright, patent, or any other
intellectual property rights in the Third Party Software.
the Customer uses any non-Netserve provided software on its Supported Items,
Customer represents and warrants to Netserve that (i) it has the legal right to
use that software; and (ii) If Netserve has agreed to install, patch or
otherwise manage that software, the Customer is authorised by the licensor of
that software to permit Netserve to perform these activities. On Netserve’s
request the Customer shall provide evidence of such authority. If the Customer
fails to provide the required evidence to Netserve, Netserve may suspend or
terminate the applicable Services.
The Customer authorises Netserve to accept on its behalf any terms or EULA
presented to Netserve when supporting, maintaining, configuring, installing or
upgrading Third Party Software as part of the Services.
Hosting and Domain Services
the Customer registers, renews or transfers a domain name through Netserve,
Netserve’s responsibility will solely comprise of submitting the Customer’s
request to its domain name registrar on the Customer’s behalf. Netserve is not
responsible for any failure, errors, omissions or failures of the registrar.
The Customer’s continued use of the domain name is subject to the registrar’s
terms of service applicable to the domain name. The Customer is responsible for
closing any current or prior account (for example, with a reseller of or
registrar) in respect of the relevant domain name, and for responding to any
enquiries sent to the Customer by any relevant domain name registrar to whom
Netserve makes its request for the domain name.
The Customer warrants that any material and/ or communication received,
transmitted, hosted, or otherwise processed by it using the Services is not
(and will not be) menacing, of a junk mail or spam like nature, illegal,
obscene, threatening, defamatory, discriminatory, promote illegal or unlawful
activity, or be otherwise actionable or in violation of any rules, regulations
or laws to which the Service is subject, and does not (and will not) infringe
the Intellectual Property Rights of Netserve or any third party. The Customer
shall indemnify, and keep fully indemnified, Netserve against all costs,
claims, demands, expenses, losses and liabilities arising out of or in
connection with any breach or reasonably suspected breach of this section 7.2.
Charges are not paid in respect of domain name registrations, Netserve may
cancel or retain the registration under the allowable terms of the registering
authority. The Customer is responsible for ensuring they have rights to use
domain names that are registered through Netserve and the Customer hereby
indemnifies Netserve for any loss of whatsoever nature incurred by Netserve in
that regard. In the event of a dispute between the Customer and third parties
in respect of the rights to domain names, Netserve retains the right to suspend
or cancel disputed domain names in accordance with the terms of the registering
Where hosting forms part of the Services, the Customer grant to Netserve a licence
for the duration of the Contract to:
(a) host the material to
be hosted by Netserve under the Contract; and
(b) remove or amend any
material contained in the hosted material that breaches the Contract or in
respect of which Netserve receives a credible request from a third party
rights-holder to remove the material.
Netserve, in its reasonable opinion, believes that an item hosted by it under
the Contract may at any time be the cause of, or a contributing factor to, or
affected by any problem with Netserve servers, systems or digital properties,
or third party clients’ digital properties, Netserve may temporarily disconnect
the item to investigate and rectify any problem which may arise.
Please note that pending settlement in full of any outstanding Charges under
any Contract Netserve reserves the right to:
(a) retain control
of the Customer’s domain name server (“DNS”). Without control of the DNS, the
Customer will be unable to administer, review, transfer or alter any settings
in relation to any email account or website in respect of which such DNS
(b) Retain control of
authentication credential to any email solution, spam filter or other managed
service hosted by Netserve for the Customer as part of the Services.
Charges and payment
For Subscription Contracts, the Charges for the Services shall be as set out in
the Order Confirmation.
For Contracts other than Subscription Contracts, or the Customer requests
Services which are outside of a Subscription Contract, charges for Services are
made on a time and materials basis. Any estimates provided in the Order
Confirmation shall be considered indicative and subject to change, and not
binding on Netserve.
Where Charges are made on a time and materials basis:
(a) the Charges shall be
calculated in accordance with Netserve’s time-based rates specified in the
Price Guide as amended and notified to the Customer from time to time;
(b) Netserve’s daily fee
rates for each individual are calculated on the basis of an eight-hour day from
9.00 am to 5.30 pm worked on Business Days;
(c) Netserve shall be
entitled to charge an overtime rate as set in the Price Guide rate on a
pro-rata basis for each part day or for any time worked by individuals whom it
engages on the Services outside 9.00am to 5.30pm; and
(d) Netserve shall be
entitled to charge the Customer for any expenses reasonably incurred by the
individuals whom Netserve engages in connection with the Services including
travelling expenses, hotel costs, subsistence and any associated expenses, and
for the cost of services provided by third parties and required by Netserve for
the performance of the Services, and for the cost of any materials.
Netserve shall invoice the Customer as set out in the Order Confirmation. Where
no invoicing terms are set out in the Order Confirmation, Netserve may invoice
the Customer for the Charges on the date of completion of the Services.
The Customer shall pay each invoice submitted by Netserve:
(a) within 14 days of
the date of the invoice or in accordance with any credit terms agreed by
Netserve and confirmed in writing to the Customer; and
(b) in full and in
cleared funds to a bank account nominated in writing by Netserve, and
time for payment shall be of the essence of the Contract.
All amounts payable by the Customer under the Contract are exclusive of amounts
in respect of value added tax chargeable from time to time (VAT). Where any
taxable supply for VAT purposes is made under the Contract by Netserve to the
Customer, the Customer shall, on receipt of a valid VAT invoice from Netserve,
pay to Netserve such additional amounts in respect of VAT as are chargeable on
the supply of the Services at the same time as payment is due for the supply of
the Customer fails to make a payment due to Netserve under the Contract by the
due date, then, without limiting Netserve’s remedies under section 17:
(a) the Customer shall
pay interest on the overdue sum from the due date until payment of the overdue
sum, whether before or after judgment. Interest under this section 8.7 will
accrue each day at 4% a year above the Bank of England’s base rate from time to
time, but at 4% a year for any period when that base rate is below 0%;
(b) Netserve shall be
entitled to commence debt recovery action against the Customer, including the
instruction of any collection agent in respect of any judgment obtained for the
debt, and shall be entitled to charge the Customer for any sums incurred by
Netserve in respect of the instruction of such collection agent.
All amounts due under the Contract shall be paid in full without any set-off,
counterclaim, deduction or withholding (other than any deduction or withholding
of tax as required by law)
Changes to the Contract
the Customer wishes to change the scope of the Services, the Supported Items,
or the scope of the support provided under this Agreement, it shall submit
details of the requested change to Netserve in writing.
Netserve shall, within a reasonable time, provide a written estimate to the
(a) the likely time
required to implement the change;
(b) any variations to
Netserve’s Charges arising from the change;
(c) the likely effect of
the change on the Services; and
(d) any other impact of
the change on the terms of the Contract.
the Customer wishes Netserve to proceed with the change, Netserve has no
obligation to do so unless and until the parties have agreed in writing on the
necessary variations to its Charges and any other relevant terms of the
Contract to take account of the change.
Staff and Contractors
11.1 Netserve will
ensure that Netserve’ staff employed in the provision of Services possess
appropriate skills and experience. Netserve reserves the right to replace any
staff assigned to the provision of the Services.
11.2 Where any part of
the Services is to be provided at the Customer’s premises, the Customer shall
ensure that Netserve’s staff and contractors have a safe place to work, and the
Customer shall notify Netserve of any health and safety rules which apply to
the Customer’s premises. Netserve will use its reasonable endeavours to ensure
that Netserve’s staff and contractors comply with such rules when working on
the Customer’s premises.
11.3 The Customer shall
indemnify Netserve in full for and against all claims, costs, expenses or
liabilities whatsoever and howsoever arising incurred or suffered by Netserve
including without limitation all legal expenses and other professional fees
(together with any VAT thereon) in relation to:
(a) the termination by
the Customer of the employment of any of its employees;
(b) anything done or
omitted to be done in respect of any of the Customer’s employees which is
deemed to have been done by Netserve by virtue of the Transfer of Undertakings
(Protection of Employment) Regulations 2006 (SI 2006/246) (“Employment
(c) any claim made at
any time by any employee of the Customer who claims to have become an employee
of or have rights against Netserve by virtue of the Employment Regulations.
11.4 Netserve will
provide support services only to the Customer’s administrative or technical
contacts listed in the Order Confirmation. Netserve will not be obliged to
provide support directly to the Customer’s end users.
11.5 The Customer is
responsible for maintaining correct authorisations and permissions for staff
and other users in respect of its systems including any items hosted, supported
or maintained by Netserve. The Customer agrees to notify Netserve in writing
immediately in the event of any changes to such permissions or authorisations.
Intellectual property rights
12.1 All Intellectual
Property Rights in or arising out of or in connection with the Services (other
than Intellectual Property Rights in any materials provided by the Customer)
shall be owned by Netserve.
12.2 Netserve grants to
the Customer, or shall procure the direct grant to the Customer of, a fully
paid-up, worldwide, non-exclusive, royalty-free licence during the term of the
Contract to operate and use the Deliverables (excluding materials provided by
the Customer) for the purpose of receiving and using the Services and the
Deliverables in its own internal business operations.
12.3 The Customer shall
not sub-license, assign or otherwise transfer the rights granted in section
12.4 The Customer grants
Netserve a fully paid-up, non-exclusive, royalty-free, non-transferable licence
to copy and modify any materials provided by the Customer to Netserve for the
term of the Contract for the purpose of providing the Services to the Customer.
12.5 If Netserve
reasonably suspects that the delivery of the Services infringes the
Intellectual Property Rights of a third party (including any licensor of
software) and Netserve determines that it is not reasonably or commercially
practicable to obtain the right to use the infringing element, or modify the
Services or Deliverable such that they do not infringe, then Netserve may
terminate the Contract without liability except to refund amounts pre-paid for
Suspension of Service
13.1 By giving
reasonable notice to the Customer, or if this is not practicable, such notice
as is reasonably practicable in the circumstances, Netserve may suspend the
Services (or any part of the Services) and / or any other service (or services)
that Netserve is providing to the Customer:
(a) to perform required
maintenance on or upgrades to Netserve’ systems;
(b) If Netserve has a
reasonable belief that an interruption is necessary to prevent fraud or any
other illegal activity taking place;
(c) if Netserve is
obliged to comply with the order, instruction, or request of a court,
government, agency, emergency service organisation, or other competent
administrative or regulatory authority, requiring suspension to the Services;
(d) if the Customer’s
use of the Services may damage or disrupt the proper functioning of the
infrastructure and / or equipment used to provide services to Netserve’ other
(e) due to problems with
any of Netserve’ data centre communications network or infrastructure, or the
suspension or terminating of Netserve’ access to the data centre’s
communications network or infrastructure; or
(f) if Netserve
has reasonable grounds to believe that the Customer is in breach of the
Customer’s obligations (including the Customer’s obligation to pay Charges),
and the Customer either fails to remedy that breach or fails to demonstrate to
Netserve’ reasonable satisfaction that no breach took place within five (5) Business
Days of written notice of the suspected breach.
13.2 If service is
suspended under these Conditions, the service will not be reinitiated whilst
there are any unpaid fees due to Netserve for any service provided by Netserve
whether or not such services relate to the suspended service.
13.3 Netserve reserves
the right to charge a reinstatement fee for any services suspended under the
Contract or any other contract between the parties and such fee may include a
security deposit of an amount commensurate to the risk to Netserve of supplying
services to the Customer, such fee to be at the sole discretion of Netserve.
14.1 Both parties will
comply with all applicable requirements of the Data Protection Legislation.
This section 14 is in addition to, and does not relieve, remove or replace, a
party’s obligations or rights under the Data Protection Legislation. In this
section 14, Applicable Laws means (for so long as and to the extent that they
apply to Netserve) the law of the European Union, the law of any member state
of the European Union and/or Domestic UK Law; Domestic UK Law means the Data
Protection Legislation from time to time in force in the UK and any other law
that applies in the UK.
14.2 The parties
acknowledge that for the purposes of the Data Protection Legislation, the
Customer is the controller in respect of any personal data processed by Netserve
on behalf of the Customer in the course of providing the Services, and Netserve
is the processor.
14.3 Without prejudice
to the generality of section 14.1, the Customer will ensure that it has all
necessary appropriate consents and notices in place to enable lawful transfer
of the personal data to (and access by) Netserve for the duration and purposes
of the Contract.
14.4 Without prejudice
to the generality of section 14.1, Netserve shall, in relation to any personal
data processed in connection with the performance by Netserve of its
obligations under the Contract:
(a) process that
personal data only on the instructions of the Customer unless Netserve is
required by Applicable Laws to otherwise process that personal data. Where Netserve
is relying on laws of a member of the European Union or European Union law as
the basis for processing personal data, Netserve shall promptly notify the
Customer of this before performing the processing required by the Applicable
Laws unless those Applicable Laws prohibit Netserve from so notifying the
(b) ensure that it has
in place appropriate technical and organisational measures to protect against
unauthorised or unlawful processing of personal data and against accidental
loss or destruction of, or damage to, personal data, appropriate to the harm
that might result from the unauthorised or unlawful processing or accidental
loss, destruction or damage and the nature of the data to be protected, having
regard to the state of technological development and the cost of implementing
any measures (those measures may include, where appropriate, pseudonymising and
encrypting personal data, ensuring confidentiality, integrity, availability and
resilience of its systems and services, ensuring that availability of and
access to personal data can be restored in a timely manner after an incident,
and regularly assessing and evaluating the effectiveness of the technical and
organisational measures adopted by it);
(c) ensure that all
personnel who have access to and/or process personal data are obliged to keep
the personal data confidential; and
(d) be deemed to be
authorised by the Customer to transfer any personal data outside of the United
Kingdom and European Economic Area, provided that such transfers are in
accordance with the requirements of Data Protection Legislation in respect of
transfers to third countries. Such authority forms part of the Customer’s
instructions in respect of the personal data;
(e) assist the Customer,
at the Customer’s cost, in responding to any request from a data subject and in
ensuring compliance with its obligations under the Data Protection Legislation
with respect to security, breach notifications, impact assessments and
consultations with supervisory authorities or regulators;
(f) notify the
Customer without undue delay on becoming aware of a personal data breach;
(g) at the written
direction of the Customer, delete or return personal data and copies thereof to
the Customer on termination of the agreement unless required by Applicable Law
to store the personal data; and
(h) maintain complete
and accurate records and information to demonstrate its compliance with this
section 14 and allow for audits by the Customer or the Customer’s designated
auditor and immediately inform the Customer if, in the opinion of Netserve, an
instruction infringes the Data Protection Legislation.
14.5 The Customer
consents to Netserve appointing as a sub-processor of Personal Data under the
Contract any of the sub-processors specified on the list of Netserve
sub-processors set out at [URL] from time to time. Netserve shall notify
Customer by email in the event of any additions or changes to the list. In the
event Customer objects to a new sub-processor, and Netserve is unable overcome
such objections in a reasonable time, Customer may terminate the Contract with
respect only to those Services which cannot be provided by Netserve without the
use of the objected-to new sub-processor by providing written notice to
Netserve. Netserve will not be obliged to refund Customer any prepaid fees as a
result of such objection or termination.
14.6 Netserve confirms
that it has entered or (as the case may be) will enter with the sub-processor
into a written agreement substantially on that third party’s standard terms of
business or incorporating terms which are substantially similar to those set
out in this section 14 and in either case which Netserve confirms reflect and
will continue to reflect the requirements of the Data Protection Legislation.
As between the Customer and Netserve, Netserve shall remain fully liable for
all acts or omissions of any third party processor appointed by it pursuant to
this section 14.
14.7 Either party may,
at any time on not less than 30 days’ notice, revise this section 14 by
replacing it with any applicable controller to processor standard sections or
similar terms forming part of an applicable certification scheme (which shall
apply when replaced by attachment to the Contract).
15.1 The Customer shall
not, for the term of the Contract and for a period of 6 months after its
termination or expiry, solicit or entice away from Netserve any person who is
or was employed or otherwise engaged by Netserve in relation to the Contract.
Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS
16.1 Nothing in the
Contract limits any liability which cannot legally be limited, including
(a) death or personal
injury caused by negligence;
(b) fraud or fraudulent
16.2 Subject to section
16.1, Netserve’s total liability to the Customer in respect of all breaches of
duty occurring within any contract year shall not exceed the cap.
16.3 In section 16.2:
(a) cap. The cap is the
greater of £100 and one hundred per cent (100%) of the total charges in the
contract year in which the breaches occurred;
(b) contract year. A
contract year means a 12-month period commencing with the Commencement Date or
any anniversary of it;
(c) total charges. The
total charges means all sums paid by the Customer and all sums payable under
the Contract in respect of services actually supplied by Netserve, whether or
not invoiced to the Customer; and
(d) total liability.
Netserve’s total liability is the total aggregate liability in contract, tort
(including negligence), breach of statutory duty, or otherwise, arising under
or in connection with the Contract.
16.4 This section 16.4
sets out specific heads of excluded loss:
(a) Subject to section
16.1, the types of loss listed in section 16.1(b) are wholly excluded by the
(b) The following types
of loss are wholly excluded:
(i) Loss of profits
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv) Loss of anticipated
(v) Loss of use or
corruption of software, data or information.
(vi) Loss of or damage
(vii) Loss of reputation.
(viii) Indirect or consequential
16.5 Netserve has given
commitments as to compliance of the Services with relevant specifications in
section 2. In view of these commitments, the terms implied by sections 3, 4 and
5 of the Supply of Goods and Services Act 1982 are, to the fullest extent
permitted by law, excluded from the Contract.
16.6 Unless the Customer
notifies Netserve that it intends to make a claim in respect of an event within
the notice period, Netserve shall have no liability for that event. The notice
period for an event shall start on the day on which the Customer became, or
ought reasonably to have become, aware of the event having occurred or (if
later) its having grounds to make a claim in respect of the event and shall
expire 6 months from that date. The notice must be in writing and must identify
the event and the grounds for the claim in reasonable detail.
16.7 This section 16
shall survive termination of the Contract.
Term and Termination
17.1 For Subscription
Contracts, the Contract shall unless terminated earlier in accordance with this
section 17 (Termination), continue for the initial period specified in the
Order Confirmation (“Initial Term”) and shall automatically extend for similar
periods (“Extended Term”) at the end of the Initial Term and at the end of each
Extended Term. Either party may give written notice to the other party before the
end of the Initial Term or the relevant Extended Term, to terminate the
Contract at the end of the Initial Term or the relevant Extended Term, as the
case may be.
17.2 Without affecting
any other right or remedy available to it, either party may terminate the
Contract with immediate effect by giving written notice to the other party if:
(a) the other party
commits a material breach of any term of the Contract and (if such a breach is
remediable) fails to remedy that breach within 14 days of that party being
notified in writing to do so;
(b) the other party
takes any step or action in connection with its entering administration,
provisional liquidation or any composition or arrangement with its creditors
(other than in relation to a solvent restructuring), being wound up (whether
voluntarily or by order of the court, unless for the purpose of a solvent
restructuring), having a receiver appointed to any of its assets or ceasing to
carry on business;
(c) the other party
suspends, or threatens to suspend, or ceases or threatens to cease to carry on
all or a substantial part of its business; or
(d) the other party’s
financial position deteriorates to such an extent that in the terminating
party’s opinion the other party’s capability to adequately fulfil its
obligations under the Contract has been placed in jeopardy.
17.3 Without affecting
any other right or remedy available to it, Netserve may terminate the Contract
with immediate effect by giving written notice to the Customer if:
(a) the Customer fails
to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of
control of the Customer.
17.4 Without affecting
any other right or remedy available to it, Netserve may suspend the supply of
Services under the Contract or any other contract between the Customer and
Netserve if the Customer fails to pay any amount due under the Contract on the
due date for payment, the Customer becomes subject to any of the events listed
in section 17.2(b) to 17.2(d) or Netserve reasonably believes that the Customer
is about to become subject to any of them.
Consequences of termination
18.1 On termination of
(a) the Customer shall
immediately pay to Netserve all of Netserve’s outstanding unpaid invoices and
interest and, in respect of Services supplied but for which no invoice has been
submitted, Netserve shall submit an invoice, which shall be payable by the
Customer immediately on receipt;
(b) the Customer shall
return all of Netserve Materials and any Deliverables which have not been fully
paid for. If the Customer fails to do so, then Netserve may enter the
Customer’s premises and take possession of them. Until they have been returned,
the Customer shall be solely responsible for their safe keeping and will not
use them for any purpose not connected with the Contract.
18.2 Where the Services
are transferred away from Netserve, Netserve reserves the right to charge such
fees as to cover charges levied by Netserve’ suppliers and/or for Netserve’
administration time. Any such fees will be notified to the Customer in advance.
All such payments must be received by Netserve prior to migration of services
18.3 Termination or
expiry of the Contract shall not affect any rights, remedies, obligations or
liabilities of the parties that have accrued up to the date of termination or
expiry, including the right to claim damages in respect of any breach of the
Contract which existed at or before the date of termination or expiry.
18.4 Any provision of
the Contract that expressly or by implication is intended to come into or
continue in force on or after termination or expiry of the Contract shall
remain in full force and effect.
19.1 Force majeure.
Neither party shall be in breach of the Contract nor liable for delay in
performing, or failure to perform, any of its obligations under the Contract if
such delay or failure result from events, circumstances or causes beyond its
19.2 Assignment and
(a) Netserve may at any
time assign, mortgage, charge, subcontract, delegate, declare a trust over or
deal in any other manner with any or all of its rights and obligations under
(b) The Customer shall
not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust
over or deal in any other manner with any of its rights and obligations under
the Contract without the prior written consent of Netserve.
(a) Each party
undertakes that it shall not at any time disclose to any person any
confidential information concerning the business, affairs, customers, clients
or suppliers of the other party, except as permitted by section 19.3(b).
(b) Each party may
disclose the other party’s confidential information:
(i) to its
employees, officers, representatives, subcontractors or advisers who need to
know such information for the purposes of carrying out the party’s obligations
under the Contract. Each party shall ensure that its employees, officers,
representatives, subcontractors or advisers to whom it discloses the other
party’s confidential information comply with this section 19.3; and
(ii) as may be
required by law, a court of competent jurisdiction or any governmental or
(c) Neither party shall
use the other party’s confidential information for any purpose other than to
exercise its rights or perform its obligations under the Contract.
confidential information includes any proposal, quotation or pricing provided
by Netserve, and any information regarding any provider of Third Party
(e) This section 19.3 is
subject to Netserve’s rights of publicity under section 19.4.
(f) This section
19.3 does not shall not apply to any Confidential Information that: is or
becomes generally available to the public (other than as a result of its
disclosure by the receiving party or its Representatives in breach of this
available to the receiving party on a non-confidential basis before disclosure
by the disclosing party;
(ii) was, is or
becomes available to the receiving party on a non-confidential basis from a
person who, to the receiving party’s knowledge, is not bound by a
confidentiality agreement with the disclosing party or otherwise prohibited
from disclosing the information to the receiving party; or
(iii) the parties agree
in writing is not confidential or may be disclosed; or
(iv) is developed by or
for the receiving party independently of the information disclosed by the
(a) The Customer
expressly grants to Netserve, a royalty-free, sub-licensable, perpetual,
irrevocable, non-exclusive, worldwide license to use, reproduce and publish the
Customer’s name, logo or any other identifying words, logos or marks used by
and/or associated with the Customer to identify the Customer for the purpose of
identifying the Customer as Netserve’s customer on Netserve’s website and its
promotional, sales and marketing materials (including without limitation on its
social media accounts).
(b) The Customer hereby
authorises Netserve to include details of Netserve’s relationship with the
Customer in any training, marketing or promotional material produced by it or
on its behalf in relation to Netserve or the Services.
19.5 Entire agreement.
(a) The Contract
constitutes the entire agreement between the parties and supersedes and extinguishes
all previous agreements, promises, assurances, warranties, representations and
understandings between them, whether written or oral, relating to its subject
(b) Each party
acknowledges that in entering into the Contract it does not rely on, and shall
have no remedies in respect of any statement, representation, assurance or
warranty (whether made innocently or negligently) that is not set out in the
Contract. Each party agrees that it shall have no claim for innocent or
negligent misrepresentation or negligent misstatement based on any statement in
19.6 Waiver. A waiver of
any right or remedy under the Contract or by law is only effective if given in
writing and shall not be deemed a waiver of any subsequent right or remedy. A
failure or delay by a party to exercise any right or remedy provided under the
Contract or by law shall not constitute a waiver of that or any other right or
remedy, nor shall it prevent or restrict any further exercise of that or any
other right or remedy. No single or partial exercise of any right or remedy
provided under the Contract or by law shall prevent or restrict the further
exercise of that or any other right or remedy.
19.7 Severance. If any
provision or part-provision of the Contract is or becomes invalid, illegal or
unenforceable, it shall be deemed modified to the minimum extent necessary to
make it valid, legal and enforceable. If such modification is not possible, the
relevant provision or part-provision shall be deemed deleted. Any modification
to or deletion of a provision or part-provision under this section shall not
affect the validity and enforceability of the rest of the Contract.
19.8 Third party rights.
(a) Unless it expressly
states otherwise, the Contract does not give rise to any rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of the
(b) The rights of the parties
to rescind or vary the Contract are not subject to the consent of any other
19.9 Governing law. The
Contract, and any dispute or claim (including non-contractual disputes or
claims) arising out of or in connection with it or its subject matter or
formation shall be governed by, and construed in accordance with the law of
England and Wales.
19.10 Jurisdiction. Each party irrevocably
agrees that the courts of England and Wales shall have exclusive jurisdiction
to settle any dispute or claim (including non-contractual disputes or claims)
arising out of or in connection with the Contract or its subject matter or
The following definitions and rules of interpretation apply
in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England,
when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in
accordance with section 8 (Charges and payment).
Commencement Date: has the meaning given in section 1.2.
Conditions: these terms and conditions as amended from time to time, including
the Support Services Terms.
Contract: the contract between Netserve and the Customer for the supply of
Services in accordance with these Conditions.
Controller, processor, data subject, personal data, personal data breach,
processing and appropriate technical measures: as defined in the Data
Customer: the person or firm who purchases Services from Netserve.
Customer Default: has the meaning set out in section 3.2.
Data Protection Legislation: the UK Data Protection Legislation and any other
European Union legislation relating to personal data and all other legislation
and regulatory requirements in force from time to time which apply to a party
relating to the use of personal data (including, without limitation, the
privacy of electronic communications).
Deliverables: the deliverables set out in the Order produced by Netserve for
Intellectual Property Rights: patents, rights to inventions, copyright and
related rights, rights in designs, rights in computer software, database
rights, rights to use, and protect the confidentiality of, confidential
information (including know-how and trade secrets), and all other intellectual
property rights, in each case whether registered or unregistered and including
all applications and rights to apply for and be granted, renewals or extensions
of, and rights to claim priority from, such rights and all similar or
equivalent rights or forms of protection which subsist or will subsist now or
in the future in any part of the world.
Netserve: Netserve Ltd a limited company registered in England and Wales with
company number 09570545.
Netserve Materials: has the meaning set out in section 3.1(h)
Order: the Customer’s order for Services as set out in the Customer’s written
acceptance of Netserve’s quotation, or overleaf, or placed on the Netserve
website, in person or by telephone, as the case may be.
Order Confirmation: has the meaning given in section 1.2.
Price Guide: the list of charges and prices applicable to certain elements of
the Services, as made available to the Customer from time to time.
Services: the services, including the Deliverables, supplied by Netserve to the
Customer as set out in the Service Description.
Service Description: the description or specification of the Services provided
by Netserve to the Customer in a quotation or Order Confirmation.
Subscription Contract: a Contract for supply of Services for a defined period
such as one month, or one year.
Support Services: Services comprising support and maintenance of Supported
Items (as defined in the Support Services Terms) in accordance with these
Conditions, as set out in an Order Confirmation.
Support Services Terms: the terms additionally applicable to Contracts for
UK Data Protection Legislation: all applicable data protection and privacy
legislation in force from time to time in the UK including the General Data
Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the
Privacy and Electronic Communications Directive 2002/58/EC (as updated by
Directive 2009/136/EC) and the Privacy and Electronic Communications
Regulations 2003 (SI 2003/2426) as amended.
(a) A reference to a
statute or statutory provision is a reference to it as amended or re-enacted. A
reference to a statute or statutory provision includes all subordinate
legislation made under that statute or statutory provision.
(b) Any words following
the terms including, include, in particular, for example or any similar
expression, shall be construed as illustrative and shall not limit the sense of
the words, description, definition, phrase or term preceding those terms.
(c) A reference to
writing or written includes email.
(d) In the event of any
conflict between any Order Confirmation and the Price Guide or these
Conditions, the Order Confirmation shall prevail.
Netserve Support Services Terms
Definitions and Interpretation
1.1 In this
Support Services Terms, unless the context otherwise requires, the following
expressions have the following meanings:
means, any day other than Saturday or Sunday or a public
Means 9am to 5.30pm on Business Days;
Commercially Reasonable Efforts
the same degree of priority and diligence with which
Netserve meets the support needs of its other similar customers
any of the following causes: any improper use, misuse or
unauthorised alteration of the Supported Items by the Customer; any use of the
Supported Items by the Customer in a manner inconsistent with the then-current
Services Description; the use by the Customer of any hardware or software not
provided by Netserve or approved by Netserve for use by the Customer in
connection with the Supported Items; or the use of a non-current version or
release of the Supported Item.
means the Customer’s Customer Site at which the Support
Services (and in particular the On-site support and Regular Maintenance) are to
be provided as specified in the Order Confirmation;
the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (SI 2006/246) As amended, repealed or replaced.
any failure of the Supported Item to operate in all material
respects in accordance with its specification.
means telephone based support from Netserve’s team of
means the on-site support to be provided at the Customer
services provided by Netserve in connection with any
apparent problem regarding the Supported Items reasonably determined by
Netserve not to have been caused by a Fault, but rather by a Customer Cause
means the scheduled site visits made by Netserve for the
purposes of maintaining the Supported Items;
request made by the Customer in accordance with these
Support Services Terms for support in relation to the Supported Items,
including correction of a Fault, by means of email to [email protected] or by
telephone to the numbers notified to the customer by Netserve from time to
means the IT support services to be provided by Netserve to
the Customer as set out in the Order Confirmation which may include Helpline
Support, On-site Support and Regular Maintenance.
means the computer hardware, devices and software which are
to be maintained and supported by Netserve as set out in the Order
The Support Services
shall provide the Support Services to the Customer in accordance with the
provisions of these Support Services Terms and the Order Confirmation and use
reasonable endeavours to provide a correction or workaround in respect of
Faults in Supported Items.
shall provide the Support Services only as specified in the Order Confirmation
during Business Hours, and only in relation to the Supported Items.
shall provide Helpline Support during Business Hours.
2.4 If the
Order Confirmation states that On-site Support will be provided, Netserve shall
use reasonable endeavours to provide On-site Support at the Customer Site.
2.5 If the
Order Confirmation states that Regular Maintenance will be provided, Netserve
shall at the frequency set out in the Order Confirmation provide Regular
Maintenance, such maintenance to be carried out on the Customer Site.
will use Commercially Reasonable Efforts to correct all Faults notified in accordance
with these Support Services Terms
may reasonably determine that any services are Out-of-scope Services. If
Netserve makes any such determination, it shall promptly notify the Customer of
Customer acknowledges that Netserve is not obliged to provide Out-of-scope
Customer may request Support Services by way of a Support Request.
2.10 Each Support
Request shall include a description of the problem and the start time of the
Customer shall provide Netserve with such information in connection with the
Support Services and the provision thereof as Netserve shall reasonably require
both before and during the provision of the Support Services.
Customer shall for the duration of the Contract not permit any person other
than Netserve provide support and maintenance for the Supported Items.
Customer shall act in accordance with any and all reasonable instructions
issued by Netserve in relation to the Support Services. Netserve shall
not be liable for any failure to provide the Support Services or any part
thereof which arises out of the Customer’s failure to follow any such
Customer shall consult with Netserve with respect to any new computer hardware,
devices and/or software which it intends to procure where such hardware,
devices and/or software which it may wish to be added to the Supported Items.
The Customer acknowledges that any change to the Supported Items is subject to
the prior agreement of Netserve, and is likely to be subject to additional
Customer shall allow Netserve and (where applicable) its personnel at all
reasonable times to the Customer Site for the purpose of providing the Support
Customer shall provide Netserve with:
prompt notice of any Faults; and
such output and other data, documents, information, assistance and (subject to
compliance with all Customer’s security and encryption requirements notified to
Netserve in writing) remote access to the its IT systems, as are reasonably
necessary to assist Netserve to reproduce operating conditions similar to those
present when the Customer detected the relevant Fault and to respond to the
relevant Support Request.
Customer acknowledges that, to properly assess and resolve Support Requests, it
may be necessary to permit Netserve direct access at the Customer Site to the
Customer’s IT systems and the Customer’s files, equipment and personnel. The
Customer shall provide such access promptly, on request.
To the extent that the Services comprise access to Giacom
services (including Messagestream), the following additional terms apply.
References to ‘you’ are to the Customer, and reference to ‘us’ are to Netserve.
calculate our on the basis that our customers will use the Services in a fair
and reasonable manner. For the benefit of all our customers it is therefore an
essential term of this agreement that you comply with and your employees,
agents and sub-contractors comply with, the provisions of these clauses.
must comply with any specific terms applicable to any Service, including any
usage limits or restrictions. We may change usage limits or restrictions from
time to time on notice to you. In addition (whether or not there is a specific
usage limit for the Service) you must not use any Service in an excessive,
unusual or unexpected manner or for a purpose other than which it is intended.
Services by their nature have finite storage, speed, resilience and operating
capacity which must be shared between our customers. Whilst we will endeavour
to meet expected normal demand, if we do not have sufficient capacity to meet
demand at any time we may have to place restrictions on the usage of the Services
to help maintain the stability and continued availability of the Services as
far as possible. This ability to manage our capacity allows us to keep our fees
at a reasonable level.
agree that you will ensure that your use of the Services and of your employees,
agents and sub-contractors will only be for lawful purposes and will not
violate any applicable law, regulation, code of practice or guidance.
must not copy, rent, sublicense, display, reverse engineer, modify or alter any
software owned or developed by us or our suppliers, except to the extent
expressly permitted by the terms of this agreement or to the extent that such
activities cannot be prohibited by law (and you must impose the same
requirement on your Customers).
Services must not under any circumstances be used in any way to:
6.1 infringe the
intellectual property or other rights of any third party;
6.2 threaten, harass,
stalk, abuse, disrupt or otherwise violate the rights of others;
6.3 engage in illegal or
unlawful activities; or
6.4 transmit spam or
distribute viruses or otherwise deliberately abuse any part of the Service.
Services are not fault tolerant and are not designed for use in applications in
which failure could lead to death, personal injury, physical, property or
environmental damage, disruption of a supply of money, food, water, energy or
fuel, disruption of a system of communication, disruption of facilities for
transport, disruption of services relating to health or serious economic damage
either generally or to you, one or more of your Customers or to any third
8. In the event that Netserve’s agreement with Giacom
terminates, we will notify you and on such notice your Contract for Services
provided by Giacom shall automatically terminate.
9. You acknowledge that you do not have any direct
relationship with Giacom for the provision of the Services, and (to the extent
permitted by law) any claim you have in respect of the Contract for Services
shall be brought against us, not Giacom.
Netserve – Terms and Conditions for the sale of Hardware
The customer’s attention is drawn in particular to the
provisions of clause 8, under which Netserve retains ownership of the Hardware
pending payment and entitles Netserve to retrieve it from the Customer’s
possession in the event of non-payment.
Business Day: a day (other than a Saturday, Sunday or public holiday) when
banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from
time to time.
Contract: the contract between Netserve and the Customer for the sale and
purchase of the Hardware in accordance with these Conditions.
Customer: the person or firm who purchases the Hardware from Netserve.
Force Majeure Event: an event or circumstance beyond a party’s reasonable
Hardware: the items of computer hardware and accessories (or any part of them)
set out in the Order.
Netserve: Netserve Ltd a limited company registered in England and Wales with
company number 09570545.
Order: the Customer’s order for the Hardware, as set out in the Customer’s
written acceptance of Netserve’ quotation, the Customer’s written acceptance of
Netserve’ quotation, or overleaf, as the case may be.
Specification: any specification for the Hardware, including any related plans
and drawings, that is agreed by the Customer and Netserve.
(a) any phrase introduced
by the terms including, include, in particular or any similar expression shall
be construed as illustrative and shall not limit the sense of the words
preceding those terms.
reference to writing or written includes email.
Basis of contract
These Conditions apply to the Contract to the exclusion of any other terms that
the Customer seeks to impose or incorporate, or which are implied by trade,
custom, practice or course of dealing.
The Order constitutes an offer by the Customer to purchase the Hardware in
accordance with these Conditions. The Customer is responsible for ensuring that
the terms of the Order are complete and accurate.
The Order shall only be deemed to be accepted when the Customer accepts
Netserve’s quotation by means of Netserve’s invoicing system, at which point
the Contract shall come into existence.
The Customer waives any right it might otherwise have to rely on any term endorsed
upon, delivered with or contained in any documents of the Customer that is
inconsistent with these Conditions.
Any samples, drawings, or advertising produced by Netserve and any
illustrations contained in Netserve’ catalogues or brochures are produced for
the sole purpose of giving an approximate idea of the Hardware referred to in
them. They shall not form part of the Contract nor have any contractual force.
quotation for the Hardware given by Netserve shall not constitute an offer. A
quotation shall only be valid for a period of 14 days from its date of issue.
The Hardware is described in the Specification.
Netserve reserves the right to amend the Specification if required by any
applicable statutory or regulatory requirements.
This section is not applicable to the extent that the parties have agreed in
writing that the Hardware is to be hosted by Netserve on behalf of the Customer.
Except as specified in Netserve’ quotation, (i) the Customer shall collect the
Hardware from Netserve’ premises or such other location as may be advised by
Netserve prior to delivery (Delivery Location) within three Business Days of
Netserve notifying the Customer that the Hardware are ready, and (ii) the
Customer shall be responsible (at the Customer’s cost) for preparing the
delivery location for the delivery of the Hardware and for the provision of all
necessary access and facilities reasonably required for delivering and
installing the Hardware. Delivery is completed on the completion of unloading
or loading (as the case may be) of the Hardware at the Delivery Location.
Any dates quoted for delivery are approximate only, and the time of delivery is
not of the essence. Netserve shall not be liable for any delay in delivery of
the Hardware that is caused by a Force Majeure Event or the Customer’s failure
to provide Netserve with adequate delivery instructions or any other instructions
that are relevant to the supply of the Hardware.
Netserve fails to deliver the Hardware, its liability shall be limited to the
costs and expenses incurred by the Customer in obtaining replacement goods of
similar description and quality in the cheapest market available, less the
price of the Hardware. Netserve shall have no liability for any failure to
deliver the Hardware to the extent that such failure is caused by a Force
Majeure Event or the Customer’s failure to provide Netserve with adequate
delivery instructions or any other instructions that are relevant to the supply
of the Hardware.
the Customer fails to take or accept delivery of the Hardware within three
Business Days of Netserve notifying the Customer that the Hardware are ready,
then, except where such failure or delay is caused by a Force Majeure Event or
Netserve’ failure to comply with its obligations under the Contract:
(a) delivery of
the Hardware shall be deemed to have been completed at 9.00 am on the third
Business Day after the day on which Netserve notified the Customer that the
Hardware were ready; and
(b) Netserve shall
store the Hardware until delivery takes place, and charge the Customer for all
related costs and expenses (including insurance).
Netserve may deliver the Hardware by instalments, which shall be invoiced and
paid for separately. Any delay in delivery or defect in an instalment shall not
entitle the Customer to cancel any other instalment.
Delivery charges are not included with proposals made by Netserve unless
otherwise stated. Any such charges will be added to the Customer invoice.
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to
the fullest extent permitted by law, excluded from the Contract.
Netserve shall use reasonable endeavours to transfer to the Customer the
benefit of any warranty or guarantee given by the manufacturer to Netserve.
is the Customer’s responsibility to ensure that all warranty registration cards
for Hardware sold to the Customer are completed and returned to the equipment
These Conditions shall apply to any repaired or replacement Hardware supplied
Netserve, to the extent that it is permitted to do so, hereby assigns the
benefit of any guarantee or warranty covering any defects in Hardware received
by Netserve under an agreement with the manufacturer or supplier of the
The warranty service (if any) will be that provided by the manufacturer or
supplier (as the case may be) and any validation procedures relating to that
warranty service are the responsibility of the Customer.
Netserve may in its discretion offer support or maintenance services with
respect to Hardware and such services shall be governed by separate Support
Services Terms agreed between Netserve and the Customer.
The warranty of the manufacturer or supplier is in lieu of all other terms or
conditions whether express or implied concerning the quality or fitness for
purpose of Hardware and all such other terms and conditions are hereby excluded
to the fullest extent permitted by law.
Title and risk
The Customer shall own the Hardware on the later of (i) completion of delivery
(including off-loading), or Hardware being placed at the disposal of the
Customer at the location agreed between the parties; and (ii) Netserve
receiving in full in cleared funds all sums due to it in respect of the
Until ownership of the Hardware has passed to the Customer under this
Agreement, the Customer shall:
(a) hold the
Hardware on a fiduciary basis as Netserve’ bailee;
(b) store the
Hardware (at no cost to Netserve) in satisfactory conditions and separately
from all the Customer’s other equipment or that of a third party, so that it
remains readily identifiable as Netserve’ property;
(c) not destroy,
deface or obscure any identifying mark or packaging on or relating to the
(d) keep the
Hardware insured on Netserve’ behalf for its full price against all risks to
the reasonable satisfaction of Netserve, and hold the proceeds of such
insurance on trust for Netserve and not mix them with any other money, nor pay
the proceeds into an overdrawn bank account.
The Customer’s right to possession of the Hardware before ownership has passed
to it shall terminate immediately if the Customer breaches any term of this
Agreement, encumbers or in any way charges the Hardware, or if the Customer
fails to make any payment to Netserve on the due date.
The Customer grants Netserve, its agents and employees an irrevocable licence
at any time to enter any premises where the Hardware is or may be stored in
order to inspect it, or where the Customer’s right to possession has
terminated, to remove it. All costs incurred by Netserve in repossessing the
Hardware shall be borne by the Customer.
Price and payment
The price of the Hardware shall be the price set out in the Order, or, if no
price is quoted, the price set out in Netserve’ published price list in force
as at the date of delivery.
Netserve may, by giving notice to the Customer at any time before delivery,
increase the price of the Hardware to reflect any increase in the cost of the
Hardware that is due to:
(a) any factor
beyond Netserve’ control (including foreign exchange fluctuations, increases in
taxes and duties, and increases in labour, materials and other manufacturing
(b) any request by
the Customer to change the delivery date(s), quantities or types of Hardware
ordered, or the Specification; or
(c) any delay
caused by any instructions of the Customer or failure of the Customer to give
Netserve adequate or accurate information or instructions.
The price of the Hardware:
amounts in respect of value added tax (VAT), which the Customer shall
additionally be liable to pay to Netserve at the prevailing rate, subject to
the receipt of a valid VAT invoice; and
(b) excludes the
costs and charges of packaging, insurance and transport of the Hardware, which
shall be invoiced to the Customer.
Netserve may invoice the Customer for the Hardware on or at any time after the
completion of delivery.
The Customer shall pay the invoice in full and in cleared funds within 14 days
of the date of the invoice. Payment shall be made to the bank account nominated
in writing by Netserve. Time for payment is of the essence.
the Customer fails to make any payment due to Netserve under the Contract by
the due date for payment, then the Customer shall pay interest on the overdue
amount at the rate of 4% per annum above Barclays bank base rate from time to
time. Such interest shall accrue on a daily basis from the due date until actual
payment of the overdue amount, whether before or after judgment. The Customer
shall pay the interest together with the overdue amount.
The Customer shall pay all amounts due under the Contract in full without any
set-off, counterclaim, deduction or withholding (except for any deduction or
withholding required by law). Netserve may at any time, without limiting any
other rights or remedies it may have, set off any amount owing to it by the
Customer against any amount payable by Netserve to the Customer.
Limitation of liability
10.1 Nothing in
these Conditions shall limit or exclude Netserve’ liability for any matter in
respect of which it would be unlawful for Netserve to exclude or restrict
(a) death or
personal injury caused by its negligence, or the negligence of its employees,
agents or subcontractors (as applicable);
(b) fraud or
(c) breach of the
terms implied by section 12 of the Sale of Goods Act 1979; or
products under the Consumer Protection Act 1987.
10.2 Subject to
(a) Netserve shall
under no circumstances whatsoever be liable to the Customer, whether in
contract, tort (including negligence), breach of statutory duty, or otherwise,
for any loss of profit, or any indirect or consequential loss arising under or
in connection with the Contract; and
total liability to the Customer in respect of all other losses arising under or
in connection with the Contract, whether in contract, tort (including
negligence), breach of statutory duty, or otherwise, shall in no circumstances
exceed the price of the Hardware.
Neither party shall be in breach of the Contract nor liable
for delay in performing, or failure to perform, any of its obligations under
the Contract if such delay or failure result from a Force Majeure Event. If the
period of delay or non-performance continues for 3 months, the party not
affected may terminate the Contract by giving 7 days written notice to the
and other dealings.
(a) Netserve may
at any time assign, transfer, mortgage, charge, subcontract or deal in any
other manner with all or any of its rights or obligations under the Contract.
(b) The Customer
may not assign, transfer, mortgage, charge, subcontract, declare a trust over
or deal in any other manner with any or all of its rights or obligations under
the Contract without the prior written consent of Netserve.
(a) This Contract
constitutes the entire agreement between the parties and supersedes and
extinguishes all previous agreements, promises, assurances, warranties,
representations and understandings between them, whether written or oral,
relating to its subject matter.
(b) Each party
agrees that it shall have no remedies in respect of any statement,
representation, assurance or warranty (whether made innocently or negligently)
that is not set out in this agreement. Each party agrees that it shall have no
claim for innocent or negligent misrepresentation or negligent misstatement
based on any statement in this agreement.
law. The Contract, and any dispute or claim (including non-contractual disputes
or claims) arising out of or in connection with it or its subject matter or
formation, shall be governed by and construed in accordance with the law of
England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim (including non-contractual
disputes or claims) arising out of or in connection with the Contract or its
subject matter or formation.