Standard terms and conditions of sale
All orders are accepted and goods supplied subject to the following express terms and conditions (the Company’s standard conditions of sale) and save to the extent that the exclusion or restriction of liability may be prohibited by statute, all other conditions, warranties and representations whether implied, statutory or otherwise, except as to title, are hereby excluded. Any order placed by a customer shall constitute an offer to contract upon these express terms and conditions, and no addition or variation therefrom whether contained in the Customer’s order or otherwise shall apply unless expressly agreed in writing by the Company’s authorised representative.
“The Company” shall mean SMG Business Solutions Limited.
“The Customer” shall mean the individual, company or other organisation to whom the Company may agree to supply Goods in accordance with the Company’s standard conditions of sale.
“The Goods” means the articles of things, or services, or any part thereof, to be supplied by the Company in accordance with the Company’s standard conditions of sale. Such goods shall include, but not be limited to, Packaged Software, Custom Software, Software Configuration, Installation, Development, Support, Training, Maintenance, Documentation, Hardware and Consultancy.
“The Manufacturer” shall mean a separate legal entity who is the original supplier of Goods where the Company is not the original creator, specifically relating to Hardware and Packaged Software.
All orders are subject to the availability of goods, or personnel to perform a service, and to acceptance by the Company’s authorised representative. Any confirmation by telephone shall be deemed to be provisional only, pending full written confirmation which is deemed acceptance of the order.
(a) Catalogues, price lists and other advertising literature or material as used by the Company are intended only as an indication to price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding on the Company. Customers should request a written quotation from the Company to confirm actual prices prior to placing an order.
(b) All quoted or listed prices are based on the cost to the Company of supplying the Goods to the Customer and if before delivery of Goods there occurs any increase, or decrease in any way of such costs in respect of Goods which have not yet been delivered, the Customer will be duly notified in writing of an increase, or decrease in price, and delivery suspended pending reconfirmation of the order by the Customer.
The Company will not be liable in respect of any loss or damage caused by or resulting from any variation for whatever reason in the Manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. The Company will use all reasonable endeavours to advise the Customer of any such impending variation if it receives notice thereof from the Manufacturer.
CARRIAGE AND DELIVERY
Except as in accordance with the Company’s catalogue, prices do not include delivery charges to the Customer, and the Company reserves the right to levy a charge for delivery to any destination specified by the Customer.
PASSING OF RISK AND PROPERTY
(a) Risk in the goods shall pass to the Customer on delivery.
(b) Property in the Goods, where applicable, shall remain in the Company until payment in full thereof has been received from the Customer by the Company.
(c) If payment in full is not made in accordance with the Company’s standard conditions of sale the Company may require the Customer to return the Goods forthwith, and in the case of Software, a written declaration that such software has been deleted from all of the Customer’s computer systems and backup media.
DEFECTS AND USE
Save as herein expressly provided, and save to the extent that the exclusion or restriction of liability may be prohibited by statute, the Company shall not be liable for any loss of whatsoever nature or to whomsoever or whatsoever caused arising out of the use of the Goods. The Customer shall indemnify the Company against all claims made against the Company by any third party in respect thereof. Unless otherwise agreed:
(a) With respect to physical Goods (ie, not service, consultancy, training, custom development), where such are rejected by the Customer as not being in accordance with the Customer’s order the Company will only accept the return of such Goods provided that it receives written notice thereof within 7 working days following the day of receipt of the Goods by the Customer, and if such notice is not received by the Company within the said period of 7 working days the Goods shall be deemed to have been accepted by the Customer. The Company will not consider any claim for compensation, indemnity or refund until liability, if any, has been established or agreed with the Manufacturer and where applicable, the Insurance Company.
(b) No Goods will be accepted for return unless they are in the same condition as supplied by the Company, and in the case of Computer Software, have not been opened or installed, and any seals are intact, and
(c) In the case of defects or faulty workmanship in the Goods or any part thereof the Customer shall not be entitled to any greater compensation than the Company receives from the Manufacturer or supplier of said Goods.
(d) In the case of Software supplied on electronic media such as diskettes or tape, such electronic media shall be replaced upon return to the Company should said media prove to be defective and has been returned within 7 working days of delivery.
If the Customer wishes to return any Goods for any reason, including defective media, a returns number should be obtained from the Company.
(a) Credit terms are only available at sole discretion of the Company.
(b) Unless otherwise specifically negotiated and agreed, all accounts are payable within 30 days of delivery.
(c) The Company reserves the right to charge the Customer interest at Bank of England base rate plus 4% on all monies not paid within the Company’s agreed credit terms.
Any times quoted for despatch are to be treated as estimates only, and without prejudice, although all reasonable endeavours will be made by the Company to adhere to them. No legal liability for losses shall be placed on the company for any change to the estimated delivery date or time. Quotations or offers of Goods ex stock are subject to the Goods being unsold at the time of receipt of the Customer’s written order. All despatch dates are calculated from the date of acceptance of the Customer’s written order.
CUSTOMERS DEFAULT, CANCELLATIONS AND RE-SCHEDULING OF DELIVERIES
(a) If the Customer shall make default in or commit any breach of any of its obligations to the Company or if the Customer being an individual (or when the Customer is a firm, any partner in that firm) shall at any time become bankrupt or shall have a receiving order or administration order made against him or shall make any composition or arrangement with or for the benefit of his creditors or shall purport to do so if in Scotland he shall be made insolvent or notour bankrupt or any application shall be made under any Bankruptcy Act for the time being in force for sequestration of his estate or a Trust Deed shall be granted by him on behalf of his creditors or the Customer being an incorporated body any resolution or petition to wind up its business shall be passed or presented otherwise than for reconstruction or amalgamation or if a liquidator or receiver or manager of such corporate body or its undertaking property or assets or any part thereof shall be appointed or if the Customer shall be insolvent or shall be unable or shall admit its liability to meet its commitments promptly as and when due the Company shall have the right (without prejudice to any further or other claims or right which the Company might have) forthwith to cancel any uncompleted order or to cancel or suspend delivery without any legal liability to the Company and; notwithstanding any other provisions of the Company’s standard conditions of sale, payments for any delivery already made shall immediately become due.
(b) Requests by a Customer for cancellation of any order or for rescheduling of deliveries will only be considered by the Company if made in writing, or if cancelled or rescheduled at the request of a Customer as aforesaid, then the Customer shall indemnify the Company against the costs incurred in the collection of the order and the cancellation or rescheduling thereof.
The Company shall not be liable for the cancellation by it of any order or any unfulfilled part thereof or for effecting partial delivery or performance if performance by the Company is prevented or delayed whether directly or indirectly by any cause whatsoever beyond the reasonable control of the Company whether such cause existed or was foreseeable at the date of acceptance of the Customer’s order by the Company or not and without prejudice to the generality of the foregoing any cause shall be deemed to prevent, hinder or delay the Company is thereby prevented, hindered or delayed from fulfilling other commitments whether to the Customer or to third parties.
Unless otherwise agreed the Goods are supplied in accordance with the Company’s and/or Manufacturer’s standard specifications. The Company reserves the right to increase its quoted or listed price or to charge accordingly in respect of any orders accepted for products of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of the Goods. Except in the case of faulty workmanship or defect which must be reported to the Company immediately and in any event within seven days from the date of delivery.
If, and to the extent that any provision or any part thereof, of the Company’s standard conditions of sale is illegal, void, or unenforceable for any reason, then such provision or part thereof (as the case may be) shall be deemed to be severable from the remaining provisions or parts of the relevant provision (as the case may be) all of which remaining provisions shall remain in full force and effect.
The waiver by the Company or any breach of any term hereunder shall not prevent the subsequent enforcement of that term, and shall not be deemed a waiver of any subsequent breach.
(a) All software, including related documentation, is supplied under licence of the applicable proprietary owner, TITLESHIP OR OWNERSHIP DOES NOT TRANSFER TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.
(b) It is the sole responsibility of the Customer to comply with any terms and conditions of the software licence attaching to software supplied and delivered by the Company and the Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software licence or having the same revoked by the proprietary owner.
(c) All software delivered hereunder is supplied “as is” and the sole obligation of the Company in connection with the supply of software is to obtain and supply a corrected version from the manufacturer concerned in the event such software fails to conform to its product description or proves in any other way to be defective PROVIDED ALWAYS that the Customer notifies the Company in writing of any defect or non-conformance to product description within thirty days of the date of delivery of the applicable software.
BESPOKE DEVELOPMENT & CUSTOMISATION OF SOFTWARE
(a) All bespoke development and customisation will be performed in accordance with a written specification which will include acceptance criteria and timescales. Such written specification shall be considered as part of the actual development.
(b) The intellectual property rights in all bespoke development and customisation shall remain with the Company.
(c) It is the Customer’s responsibility to accept any such development in the timescales specified. The development shall be considered accepted if the Company is not notified of any deviation from the specification in the timescales specified.
(d) Ongoing support and maintenance for such bespoke development is not included unless previously agreed in writing by the Company.
LIMITATION OF LIABILITY
In no event will the Company be liable for direct, indirect, special, incidental, cover or consequential damages arising out of the use or inability to use the Software, even if advised of the possibility of such damages, in no case shall the Company’s liability exceed the amount paid by the Customer for the Software. To the extent that applicable law does not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, the above limitation or exclusion may not apply to you.
(a) The Company does not represent or warrant that the functions contained in Software supplied under these terms of sale will meet the Customer’s requirements, that operation of the Software will be uninterrupted or error free, or that such defect in the Software will be corrected.
(b) The Company warrants that it will use reasonable care and skill in the performance of Training, Consultancy and Development Services or any other service rendered. The Customer’s sole remedy for default of such services will be limited to requesting that the Company (SMG Business Solutions Limited) perform the services again.
(c) EXCEPT AS PROVIDED IN PARAGRAPH 20 OF THESE TERMS AND CONDITIONS THE COMPANY EXTENDS NO WARRANTIES ON THE GOODS PROVIDED OR SERVICES PERFORMED UNDER THESE TERMS AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
SUPPORT, BACKUPS, ANTIVIRUS AND MAINTENANCE
(a) Unless previously agreed in writing by the Company, and specifically ordered by the Customer, support and/or maintenance services for the Goods are NOT included and will only be provided upon acceptance by the Company of an order for such services.
(b) Advanced block purchased service time from the company is not transferable, refundable or assignable.
(c) The Company does not warrant that Antivirus software products will prevent all risks to the Customer but are offered as a best endeavour solution.
(d) The Company may offer backup verification services and these are limited to a visual inspection of the log files provided from the backup application software. The Customer must assure themselves that their IT systems remain fully protected and backups operate to their full satisfaction. The Company will provide backup validation tests subject to quotation and these will provide a point in time validation that backups are working correctly.
(e) In accordance with the Microsoft Services Agreement (https://www.microsoft.com/en-gb/servicesagreement/) the customer understands that they’re responsible for the backup of the data contained within Microsoft Online Services (notably Office 365 Services) and that neither SMG Business Solutions Ltd or Microsoft Inc perform backups of the customers’ data. For the avoidance of doubt, Microsoft do not perform backups of Office 365 Email, SharePoint Online or data stored within OneDrive. We strongly recommend that the customer utilises our managed backup service (iStor Protect), or another third-party for this activity, as any service disruption can result in data loss without a third-party backup solution being utilised. Cloud backup solutions do not provide protection against content stored in Microsoft Office 365 Exchange Public Folders.
(f) Remote Worker subscriptions are subject to a minimum term of 30-days and automatically renew on the 1st of the month for a further period of 30-days. Subscription changes may be made at anytime and license quantities are subject to a 30-day notice period.
The Customer agrees not to assign or transfer this Agreement or any of its rights herein without the prior written consent of the Company.