(v1.0, February 2020)
The following terms and conditions (Terms) apply to all transactions with Swish ICT Limited to the exclusion of all other terms and conditions, irrespective of the date of any alternative terms and conditions which may be sent to Swish ICT. These Terms shall become binding on the Customer on the earlier of: (i) a Contract is accepted by Swish ICT; (ii) the Customer signing or agreeing in writing to a Contract; (iii) the Customer agreeing these Terms in writing (which may include email or acceptance through electronic method); (iv) the Customer paying any amount towards any item specified in the Customer Schedule; or (v) Swish ICT delivering, installing, using or accessing (where applicable) any Product or Service.
1 Definitions and Interpretation
1.1 In these Terms, the following expressions shall have the meanings set out here:
||The Services to be supplied by Swish ICT to the Customer on an ongoing, renewable basis pursuant to a Contract, including software-as-a-service, support, managed, cloud and connectivity services etc.
||The transaction-specific agreement, written or oral, between the Customer and Swish ICT, comprising the Customer Schedule and these Terms
||The person, company or other body purchasing the Products and/or Services from Swish ICT pursuant to a Contract
||The document setting out the agreed Products and/or Services, the Fees and all other information relevant to the Contract (including any Specification of any Products and/or service description/scope of works for any Services), which may include the Quote or such other document(s) which contain that information as were provided to the Customer pre-Contract, or a subsequently-signed document
||As defined in the Data Protection Laws
|Data Processing Agreement
||The document required by Article 28(3) (and equivalent provisions) of the General Data Protection Regulation (Regulation (EU) 2016/679, with effect from 25 May 2018 (please note that obligations in these Terms relating to Data Processing Agreements are not applicable until that time)
||As defined in the Data Protection Laws
|Data Protection Laws
||The Data Protection Act 1998 and, with effect from 25 May 2018, the General Data Protection Regulation (Regulation (EU) 2016/679), and any amendment, re-enactment and replacement enforceable in the UK from time to time
||As defined in the Data Protection Laws
||The date 30 calendar days after the date of the relevant invoice
||The European Economic Area
||The end user licence agreement applicable to the relevant Product, as stipulated by the Manufacturer of that Product
||The sums payable by the Customer to Swish ICT pursuant to a Contract
|Good Industry Practice
||The degree of skill and care which it is reasonable to expect of a typical provider of services similar to the Services being provided under the relevant Contract
||Any information technology and/or computer and communications hardware to be supplied to the Customer by Swish ICT pursuant to a Contract
|Intellectual Property Rights
||Rights of any nature whatsoever, whether registered or unregistered, including any patent, right in a design, copyright, trade mark, utility model, design right, service mark, database right and other intellectual property right whether or not capable of registration as may exist anywhere in the world, now or in the future
||The manufacturer, developer, distributor or licensor of the relevant Product, as applicable
||Without limitation, pure economic loss, loss of profit, loss of revenue, loss of data, loss of business and/or depletion of goodwill or anticipated savings, legal costs and any indirect, consequential, special or punitive loss
||Either of Swish ICT or the Customer, together the Parties
||The ‘personal data’ (as defined in the Data Protection Laws) over which the Customer is the Data Controller
||As defined in the Data Protection Laws (and Process & Processed shall be interpreted accordingly)
||Any Hardware, Software or other goods supplied by Swish ICT to the Customer pursuant to a Contract
||The written statement provided by Swish ICT to the Customer prior to concluding a Contract, setting out the Specification, scope, Fees and any other relevant details in respect of, and summarising any specific terms for, any Products and/or Services to be provided
||The services to be supplied by Swish ICT to the Customer pursuant to a Contract, being (a) services provided on a case-by-case basis (including consultancy, advice, design, installation, implementation, configuration etc.) and (b) Annuity Services
||The pre-packaged software or electronic licence supplied to the Customer by Swish ICT pursuant to a Contract
||The summary of the technical abilities, functionality and limitations of the Product and/or Service (for a Service, this document may be in the form of a ‘service description’ or ‘scope of works’)
||Swish ICT Limited, a company registered in Scotland with registered number SC543364, whose registered address is 4D Hillbank Road, Dundee, Scotland, DD3 7BZ. VAT Registration Number 320 6082 43.
||Monday to Friday excluding public holidays in Scotland (and, if the supply of Products and/or Services is to a country other than Scotland, also excluding the public holidays in the country to which the supply is made)
||The hours of 9.00 a.m. to 6.00 p.m. during a Working Day
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision. Any phrase introduced by the words “including”, “includes”, “in particular” or “for example”, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
2 Ordering Products and Services
2.1 No Contract which has been accepted by Swish ICT may be cancelled by the Customer unless written agreement is obtained from an authorised representative of Swish ICT; however, the Customer shall remain liable for and shall indemnify Swish ICT in full for any costs, damages, losses, charges and expenses incurred by Swish ICT as a result of any cancellation of a Contract.
2.2 Swish ICT may make any changes to the Specifications of Products or Services to conform to any applicable health and safety or legal requirement, or which do not materially negatively affect their quality or performance.
2.3 Swish ICT’s policy is to supply Products and Services only to business customers (i.e. those who are not private consumers). In accepting these Terms, the Customer warrants that it is not purchasing the Products or Services as a private consumer.
2.4 All descriptions, Specifications, photographs, weights, dimensions, capacities, prices, performance ratings and other information quoted (whether online or in hard copy format) or otherwise provided by Swish ICT or included in any sales literature, Quote, price list, acknowledgement of order, invoice or other document are to be deemed approximate only (except where stated in writing to be exact) and shall not form part of the Contract other than as approximations. Any typographical, clerical or other error or omission in any sales literature, Quote, Fees, price list, acknowledgement of order, invoice or other document (whether hard or electronic copy) or any other information issued by Swish ICT shall be subject to correction by Swish ICT without liability.
2.5 Quotes cease to have effect on the acceptance by Swish ICT of a Contract, unless that Quote forms the Customer Schedule at that time (which shall not be the case where an alternate Customer Schedule is provided). Quotes will automatically lapse at the end of the calendar month in which they are issued, unless expressly stated to the contrary on that Quote. See clause 6.8 in respect of Quotes relating to Products or Services which are billed on a use/consumption basis.
2.6 In the event of any discrepancy or conflict between the EULA, Customer Schedule (including any matter-specific documents and general Specifications), other parts of a Contract, these Terms or a Quote, the conflict shall be resolved with the earlier-listed document taking precedence over those documents listed later.
3 Delivery of Products
3.1 Swish ICT shall use its reasonable endeavours to deliver the Products to the premises stated in the Contract (and/or, in the case of electronic delivery of Products, to the email address or other electronic location as agreed) and/or to supply the Services by any delivery date estimated by Swish ICT. For the avoidance of doubt, the Customer acknowledges that such delivery date is not guaranteed or of the essence, and Swish ICT shall in no circumstances be liable to the Customer for any losses, damages or charges (including Particular Losses) incurred by the Customer due to the late delivery of Products and/or Services.
3.2 The Customer agrees that it will inspect the Products immediately upon delivery or collection and in all cases shall:
3.2.1 not sign to accept the Products if the types/quantities of Products are incorrect or the Products and/or their packaging are damaged in any way; and/or
3.2.2 inform Swish ICT in writing within 48 hours of delivery of any damage, shortages, defects or non-delivery of the Products which was not apparent at the time of delivery/collection,
and, where the Customer fails to do so, they shall be deemed to have accepted the Products.
3.3 If the Customer fails to take delivery of or, where agreed, collect the Products or fails to give Swish ICT adequate delivery instructions at the time stated for delivery (save for circumstances beyond the Customer’s reasonable control or by reason of Swish ICT’s fault) then without prejudice to any other rights or remedies available to it Swish ICT may at its sole discretion:
3.3.1 store the Products until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; and/or
3.3.2 sell the Products at the best price readily available and charge the Customer any shortfall below the Fees under the Contract.
4 Risk and Title
4.1 Risk of damage to, or loss of, Products shall pass to the Customer at the earlier of:
4.1.1 the time at which Products are delivered to the Customer or the Customer collects the Products; or
4.1.2 the time when Swish ICT has attempted to deliver the Products to the Customer and have been unable to complete delivery due to the actions or omissions of the Customer.
4.2 Notwithstanding when risk in the Products passes to the Customer, title in the Products shall not pass to the Customer until the earlier of: (i) Swish ICT has received cleared and full payment of the Fees for the Products and all other Products and Services (if applicable) supplied to the Customer for which payment is then due; (ii) on the Customer’s resale of those Products, in which case title passes to the Customer immediately prior to such resale; or (iii) in the event that the Customer fails to meet the terms of payment for those Products, immediately prior to Swish ICT bringing legal action for payment of the Fees.
4.3 Until such time as title in the Products pass to the Customer:
4.3.1 the Customer shall keep the Products separate from other goods and properly stored, protected, insured & identified as Swish ICT’s property; and
4.3.2 after the Due Date, Swish ICT shall be entitled to require the Customer to deliver up the Products to Swish ICT and if the Customer fails to do so immediately the Customer shall allow (or procure permission for) Swish ICT or its agents or representatives to enter upon the Customer’s premises (or any other premises where the Products are stored) and repossess the goods.
5.1 Where Swish ICT agrees to provide Services, any estimate or indication by Swish ICT as to the number of man days or man hours required by Swish ICT to undertake a specific task shall be construed as being an estimate only. Swish ICT shall in no circumstances be liable for a delay or for any other loss, damage or other cost of whatsoever nature (including without limitation Particular Losses) suffered or incurred by the Customer where such estimate or indication is incorrect.
5.2 Unless stated otherwise, the Fees agreed for the Services do not include travel, accommodation and subsistence expenses, nor the cost of time spent travelling incurred in the provision of the Services for which Swish ICT shall charge the Customer at its or its sub-contractors’ (as applicable) then current rates, available on request.
5.3 Swish ICT will normally carry out the Services during Working Hours but may, on reasonable notice, require the Customer to provide access to the Customer’s premises at other times. This does not apply to Annuity Services, which will generally be available at any time, subject to any applicable service levels and anticipated downtime (for maintenance etc).
5.4 At the Customer’s request, Swish ICT may agree to provide Services outside Working Hours. However, this shall be subject to any reasonable additional Fees that may be made by Swish ICT for complying with such request. Such Fees shall be agreed in writing prior to commencement of any work outside of Working Hours.
5.5 Swish ICT expects that the Customer has adequate inspection, testing and approval processes and, on completion of any Services provided by Swish ICT, the sign off by the Customer of such services shall be considered the Customer’s absolute acceptance of the satisfactory completion of such Services. In the event that the Customer has not confirmed their acceptance of the Services, nor raised any concerns about them, within 7 days of Swish ICT notifying the Customer that the Services are complete, the Customer agrees it is reasonable for Swish ICT to infer their acceptance and, where relevant, invoice for those Services.
5.6 Should the Customer become dissatisfied with the performance of any personnel assigned by Swish ICT to perform the Services, the Customer shall notify Swish ICT in writing with details of the unsatisfactory performance and, provided that Swish ICT is satisfied that the Customer’s dissatisfaction is reasonable, Swish ICT shall re-assign personnel as soon as reasonably practicable.
5.7 No liability shall accrue to Swish ICT as a result of any defects in the delivery of the Services unless:
5.7.1 a reasonably detailed inspection and testing procedure has been undertaken by the Customer to ascertain that the Services had been undertaken correctly and in full, and
5.7.2 such inspection would not have been expected to identify the defect-causing loss (due to the latent and uncheckable nature of such defect).
5.8 Where Swish ICT agrees to provide support and/or maintenance Services in respect of Products supplied to the Customer, unless otherwise set out in the relevant Customer Schedule this will generally comprise reasonable assistance in the resolution of queries via a telephone call originated by the Customer’s licensed users of such Products during Working Hours for the agreed period (limited to first line support only). If Swish ICT is unable to resolve the query during a telephone call, the Customer may be required to contact the Manufacturer of the Product directly.
5.9 The Customer may from time to time wish to vary the scope of a Service. Swish ICT will use reasonable commercial endeavours to accommodate that variation. Any changes in the Fees and/or timescales as a result of that variation shall be negotiated between the Customer and Swish ICT, and where such negotiation has not concluded at the time the Customer confirms the variation is required, the Customer accepts any increase in work required pursuant to the variation shall be provided on a time and materials basis at Swish ICT’s or its sub-contractors’ (as applicable) then current rates for the same, available on request.
5.10 Although Services are undertaken with reasonable skill and care, Swish ICT cannot guarantee the accuracy of any advice, design or report.
6 Fees and Payment
6.1 The Fees payable by the Customer for the supply of Product(s) or Services shall be that which is set out and agreed between the Customer and Swish ICT each time Swish ICT accepts a Contract placed by the Customer and as specified in the Customer Schedule or Quote as appropriate (unless varied by the Contract and Swish ICT’s acceptance). All Fees quoted are deemed exclusive of value added tax, unless expressly stated to the contrary.
6.2 Any increase in Fees for the Annuity Services shall be applied no more often than once per year at or around each anniversary of the commencement of those Services, and shall not exceed the increase in the UK Retail Price Index or Consumer Price Index (whichever is lower) calculated over the preceding 12 months unless Swish ICT can demonstrate that its costs in providing such Service have unavoidably increased by a sum exceeding that figure. Swish ICT shall notify the Customer in writing (a) at least 90 days in advance of any increase in the Fees for the Services, or (b) if Swish ICT is notified of such increase less than 90 days in advance of it becoming effective, at soon as is reasonably practicable thereafter.
6.3 Unless otherwise agreed between the Parties, invoices will be raised and dated by Swish ICT on or after the date of dispatch of the Products, or on or after commencement of the Services. Where both Products and Services are supplied against the same Contract, a separate invoice may be raised for each of those two elements.
6.4 The Customer shall pay each invoice in full (subject to a bona fide dispute), together with any VAT at the appropriate rate and other expenses, by the Due Date. The time of payment shall be of the essence.
6.5 If the Customer fails to pay any sums due by the Due Date or does not comply with an obligation under the Contract, then without prejudice to any other right or remedy available to Swish ICT, Swish ICT shall be entitled to withhold or suspend the supply of any Products and/or Services to the Customer until such payment is made or the Customer complies with its obligations to Swish ICT’s reasonable satisfaction.
6.6 Without prejudice to Swish ICT’s other rights and remedies, Swish ICT reserves the right to charge interest to the Customer on any Fees which are not paid by the Due Date, at a rate of four per cent per annum above the Bank of England base rate from time to time.
6.7 Where the Fees for a Contract are not all invoiced at the same time (e.g. where the Fees for each year of a multi-year Contract are invoiced at the start of that year) the Customer is committing to continue to make those payments over the entire period agreed in the Contract. Whilst Swish ICT will make reasonable endeavours to meet the reasonable administrative requests of the Customer, the Customer accepts that they have committed to the entire duration agreed and Swish ICT will invoice the Customer for each period in line with the Contract, regardless of whether a purchase order is received from the Customer for a specific period.
6.8 Where the Fees for a Contract are stated in the Customer Schedule to be based on consumption (e.g. where the Fees are based on the volume of storage used in gigabytes, or number of concurrent users etc.):
6.8.1 the Customer is committing to pay Swish ICT the Fees on that periodic basis for all retrospective consumption under that Contract, regardless of whether the relevant Quote was based on a different level of consumption anticipated at that time or purchase orders are received for a different specific consumption/period than actually occurred (and if purchase orders are incorrect or not received, Swish ICT shall rely on the Customer’s initial commitment to purchase pursuant to the Contract, and will automatically invoice the Fees related to actual consumption in line with the Contract); and
6.8.2 the Customer understands that the Fees stated in a Quote are based on an estimate of expected consumption (which Swish ICT has calculated based on information provided by the Customer) but the Customer will be invoiced for the quantity and duration of actual consumption (subject in each case to any minimum commitment in respect of both factors, as set out in the Contract) according to their nature, and any reductions or increases in consumption will be payable in line with the Contract as invoiced.
6.9 If the Customer Schedule provides that the Fees or any part of the Fees shall be split across the duration of a Service or the lifecycle of a Product, or are payable in arrears, then Swish ICT may withdraw or vary such arrangements, and issue an invoice for any Fees which have yet to be invoiced under the Contract, if:
6.9.1 Swish ICT serves a notice of termination of the Contract;
6.9.2 there is (in the opinion of Swish ICT) a material adverse change in the creditworthiness of the Customer; or
6.9.3 the Customer fails to pay any amount which is due and payable.
6.10 Swish ICT or its agent shall deliver the Products to any premises (whether in the United Kingdom or in any country) agreed in the Contract and for the avoidance of doubt the Customer shall be liable for any costs incurred by Swish ICT in relation to carriage, postage and packing and any other applicable taxes and duties. If any deduction or withholding from the Fees is required by way of tax, excise, customs or otherwise from a jurisdiction other than the United Kingdom, the Customer agrees to pay as Fees to Swish ICT any additional amounts necessary to ensure that the net amount that Swish ICT receives, after any deduction and withholding, equals the amount Swish ICT would have received if no deduction or withholding had been required.
6.11 The Customer acknowledges that Swish ICT sources Products from outside the United Kingdom, and may purchase in a currency other than pounds sterling. Where this occurs, the Fees proposed to the Customer in a Quote are based on Swish ICT’s currency exchange rates (including any applicable commissions for currency conversion) on the day of that Quote (available on request). Fees stated in such a Quote are given by way of convenience only and are subject to currency fluctuation. The Fees to be paid by the Customer in pounds sterling will be calculated on the Working Day in the UK on which the Contract is concluded, based on the currency exchange rates applicable that day (with any relevant commissions for currency conversion to be added), and that Fees calculated will become automatically binding at that time.
6.12 The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any amounts owed by Swish ICT and shall pay all amounts due without making a deduction of any kind. Swish ICT shall be entitled to set-off any amounts owed to it by the Customer against any sums Swish ICT owes to the Customer.
6.13 The Customer acknowledges that Swish ICT is not a finance provider and, where Products and/or Services are paid for by way of a lease or other financial product, it is likely the agreement for the purchase of those Products and/or Services exists directly between the Customer and the finance provider; Swish ICT is not a party to such agreement and neither Swish ICT nor the Customer shall have any rights or obligations to each other in respect of Products and/or Services transacted in this manner.
7 Returns Policy
7.1 Where returns are permitted by our supply chain, Swish ICT allows Customers to return unopened Products within 30 days of delivery; however, all returns are at Swish ICT’s sole and absolute discretion, will depend on our suppliers’ returns policies and may be subject to reasonable restocking fees or other conditions. Other than in line with the relevant Manufacturer’s ‘dead on arrival’ (DOA) policies or warranties, Swish ICT will not accept returns with a value below £50.
7.2 Under no circumstances will Swish ICT accept returns of opened Products unless those Products are faulty and the provisions of the remainder of this clause 7 are met. For the avoidance of doubt, no Software on which the seals have been broken can be returned. Software licences provided electronically (i.e. other than in physical format) are non-refundable.
7.3 In circumstances where return of Product(s) is permitted by Swish ICT, it will issue a credit note to the Customer so the invoice for the relevant Product is deemed cancelled and, in the event a Customer has already paid for those Products, a refund will be granted.
7.4 The refund or replacement of faulty or defective Products is subject strictly to individual Manufacturer’s DOA policies or warranty, available on request.
7.5 The Customer must observe the requirements of the Manufacturer’s DOA policy and/or warranty, including notifying Swish ICT of a defect in the Products within the required time limit.
7.6 Although Swish ICT may make reasonable endeavours to troubleshoot any problems the Customer experiences with the Products, the Customer acknowledges that Swish ICT is not the Manufacturer of the Products and that Swish ICT may be contractually limited by that Manufacturer as to the extent of the assistance they are permitted to provide. Accordingly, the Customer may be required to contact the Manufacturer’s technical department to troubleshoot and/or to obtain DOA authorisation (which shall be retained by the Customer, along with any call/case reference numbers, and presented to Swish ICT upon request).
7.7 In the case where it is established that Products are faulty or defective within the relevant Manufacturer warranty or DOA period, Swish ICT’s customer service department will arrange with the Customer to have the Products collected or returned. In some instances, the Manufacturer’s warranties require the Customer to contact a repair agent directly. If this is the case, the Customer will be informed by Swish ICT’s customer service department and provided with the contact details for the relevant Manufacturer to discuss such collection or return.
7.8 Where Swish ICT has indicated to the Customer that the return of a Product is permitted, the Customer is responsible for ensuring that the Products are returned to Swish ICT (or the relevant third party) in their original packaging together with all disks, manuals, cables and any other peripherals, accessories, consumables and other parts or items with which they were boxed or inseparably supplied so as to ensure satisfaction of the Manufacturer’s DOA policy and/or warranty stipulations (as appropriate), safe transit and ease of identification. The external packaging must not be damaged or defaced so it is recommended the goods are re-boxed for transport.
7.9 The Products will be tested on receipt. If no fault is found the Products shall be returned to the Customer at the Customer’s cost. If a fault is found and the applicable Manufacturer’s DOA period is exceeded, then the Products will be repaired and/or replaced under the terms of the Manufacturer’s warranty, to the extent that such warranty remains in force at that time.
7.10 In the event that the Manufacturer’s DOA cover and/or warranty have lapsed, expired, been invalidated or did not apply, Swish ICT shall have no liability to the Customer for such Product(s).
8 Customer’s Obligations and Warranties
8.1 In order to enable the fulfilment by Swish ICT of its obligations under a Contract, the Customer shall, at its own expense:
8.1.1 comply with, and use the Products and Services in accordance with these Terms and all applicable laws, and observe the requirements of Swish ICT’s Acceptable Use Policy, available at http://www.swish-ict.com/acceptable-use-policy, as may be updated from time-to-time, and shall ensure users of the Products and Services are adequately trained to use them;
8.1.2 where reasonably requested, or where it is reasonable for the Customer to anticipate such requirement, promptly furnish Swish ICT with co-operation, assistance and/or accurate & complete responses to requests for information (which shall include sufficient detail in that information);
8.1.3 allow Swish ICT or its subcontractors (as applicable) to exercise such right of entry as required over any relevant premises to deliver the Products and/or Services, provide Swish ICT with any relevant policies and procedures in relation to such premises (and, where such policies and procedures require time and/or materials over and above what would be normally expected to permit entry to the average business premises, provide these to Swish ICT before the Quote is prepared, or make payment or reasonable additional costs and expenses which arise in meeting the requirements of such policies and procedures), and take all reasonable precautions to protect the health and safety of those personnel whilst at that/those premises;
8.1.4 unless otherwise provided by Swish ICT, implement effective and appropriate backup and other procedures for the protection of its data;
8.1.5 observe any other obligations or requirements set out in the relevant Customer Schedule; and
8.1.6 otherwise respond to and comply with Swish ICT’s reasonable requests.
8.2 The Customer warrants that:
8.2.1 any of its representatives who commit the Customer to these Terms and any Contract with Swish ICT have the Customer’s authority to do so and that the Customer will take responsibility for any employee, ex-employee or other person who holds themselves out to be the authorised representative of the Customer;
8.2.2 it will comply with and use the Products and Services in accordance with the Contract and all applicable laws;
8.2.3 it has and shall maintain all necessary licences, permits, rights, consents, registrations, approvals and titles necessary for Swish ICT to use or host any software, hardware, documentation or other materials provided by the Customer for use in the provision of the Products or Services to the Customer; and
8.2.4 any information and materials supplied by the Customer in connection with a Quote or Contract shall be accurate and complete, and Swish ICT’s use of such shall not cause Swish ICT to infringe the rights, including any Intellectual Property Rights, of any third party.
9 Intellectual Property Rights and Software Licences
9.1 The title to and the Intellectual Property Rights in the Product(s) and in the media containing such Product(s) does not pass to the Customer. The Customer is licensed to use such Product(s) in accordance with these Terms and the EULA applicable to those Product(s), and by entering into these Terms and any Contract pursuant to them, the Customer agrees to enter into and comply with the terms of such EULA(s).
9.2 Each Party grants to the other a non-exclusive, limited, revocable licence to use its Intellectual Property Rights solely to the extent necessary for the other Party to perform its obligations under the Contract. The Parties agree that all Intellectual Property Rights which existed prior to the date of the Contract in relation to any items used in the performance of any Services shall remain the property of the existing owner of those Intellectual Property Rights.
9.3 Swish ICT (and/or their supply chain and subcontractors) shall own and be fully entitled to use in any way it deems fit any Intellectual Property Rights, including skills, techniques, materials, concepts or know-how acquired, developed or used in the course of performing any Services and any improvements made or developed during the course of Services. For the avoidance of any doubt, this shall include any improvements or modifications to Products during the duration of the Contract. Nothing herein shall be construed or shall give effect to any transfer of right, title or interest in the Customer’s or Swish ICT’s Intellectual Property Rights.
9.4 Save where the relevant EULA permits such copying, the Customer shall not, without Swish ICT’s prior written consent, copy or reproduce in any way the whole or a part of the user manual or any other documentation which has been supplied to the Customer relating to any Products or Services.
10.1 To the maximum extent permissible in law, all conditions and warranties which are to be implied by statute or general law into these Terms or relating to the Products or the Services are excluded. Notwithstanding this, any Products supplied under these Terms will conform substantively to any Specifications given in relation to them and any Services provided under these Terms will be provided in a diligent and professional manner, with reasonable skill and care and in accordance with Good Industry Practice.
10.2 Swish ICT warrants it has the right to provide or procure the provision of the Products and Services.
10.3 Swish ICT does not warrant that the Customer’s use of any Products or Services will be uninterrupted and error-free.
10.4 The only additional warranties which the Customer may receive are those which are given by the Manufacturer of such Products to the Customer and are subject to any relevant limitations and exclusions imposed by such Manufacturer. Swish ICT will provide the Customer with details of such warranties upon request.
11 General Exclusions and Limitations of Liability
11.1 Nothing in these Terms shall limit Swish ICT’s liability to the Customer for liabilities which cannot be limited or excluded as a matter of law including death or personal injury (where resulting from the negligence of Swish ICT, its employees, agents or subcontractors), fraud, fraudulent misrepresentation and statutorily-imposed terms regarding title of goods.
11.2 Swish ICT shall not in any circumstances be liable for Particular Losses, whether direct, indirect or consequential, even if a Party has been advised of the possibility of such losses.
11.3 The Customer agrees that the limitations on liability in these Terms are reasonable, given the Parties’ respective commercial positions and the Customer’s option to purchase appropriate insurance in respect of arising risks. The total liability which Swish ICT shall owe to the Customer in respect of all claims under all Contracts shall not exceed 125% of the Fees paid by the Customer in the last 12 months in respect of the Products or Services to which the claim(s) relate.
11.4 The Customer shall indemnify and keep Swish ICT indemnified in respect of any losses, costs, damages, claims and/or expenses incurred by Swish ICT due to any claims by any third party arising out of any use of, access to or modification of the Customer’s computer systems by Swish ICT on the Customer’s instructions and/or use of any materials supplied to Swish ICT by the Customer (including, but not limited to, actions in line with clause 8.2.4). This indemnity shall survive termination or expiry of a Contract to which it relates.
11.5 If delivery of Products and/or Services is delayed other than through Swish ICT’s fault, including delay as a result of the Customer’s agents or subcontractors, the Customer shall indemnify Swish ICT for any sums incurred by them as a result of that delay. Any agreed time schedules shall be deferred to a reasonable period of time (no less than the resulting period of the delay).
11.6 In the event that the Customer fails for any reason to meet their obligations under a Contract, including the obligations set out in clause 8 above, the Customer shall indemnify Swish ICT against any loss, damage or other cost of whatsoever nature suffered or incurred by Swish ICT reasonably relating to that failure on the part of the Customer.
11.7 Unless Swish ICT undertakes Services with an expressly stated outcome of advising a Customer in writing on the Products and/or Services which it recommends to meet a particular requirement, the Customer acknowledges that it is relying solely upon its own skill and judgement, and not that of Swish ICT, in determining the suitability of any Products and/or Services and their fitness for any general or specific purpose.
11.8 The Customer accepts that they are best placed to know what information may be relevant in respect of their existing and anticipated infrastructure/circumstances. Where Swish ICT suggests potential Products, or undertakes Services, Swish ICT shall not be liable for any advice, conclusions or reports which are erroneous or incomplete as a result of the Customer’s (or their agent’s) failure to supply complete and correct information, including any information which may be relevant but which has not been specifically requested by Swish ICT (or their subcontractors).
12 Force Majeure
Neither Party shall be liable to the other Party in any manner whatsoever for any failure or any delay or for the consequences of any delay in performing its obligations under a Contract (save in respect of any obligation to pay money) due to any cause beyond the reasonable control of the Party in question, which for the avoidance of doubt (and without prejudice to the generality of the foregoing) shall include governmental actions, war, riots, civil commotion, fire, flood, epidemic, labour disputes including labour disputes involving the work force or any part thereof of the Party in question, restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions and acts of God. Neither non-payment of Fees by the Customer, nor non-payment of the Customer by their customers, shall be considered a force majeure event for the purposes of this clause 12.
13.1 Swish ICT shall be entitled to terminate any Contract and suspend all or any work on current or future deliveries and instalments of Products or the provision of any Services and on written notice to the Customer shall be entitled to cancel the undelivered or unperformed portion of the Contract between Swish ICT and the Customer and deem that the whole of the Fees payable under the Contract or any other agreement shall be payable immediately in the event of:
13.1.1 any distress, execution or other legal process being levied upon any of the Customer’s assets;
13.1.2 the Customer entering into any arrangement or composition with its creditors, committing any act of bankruptcy or (being a corporation) an order being made or an effective resolution being passed for its winding up, except for the purposes of amalgamation or reconstruction as a solvent company, or a receiver, manager receiver, administrative receiver or administrator being appointed in respect of the whole or any part of its undertaking or assets;
13.1.3 the Customer ceasing or threatening to cease to carry on business;
13.1.4 any material breach of the Contract by the Customer (including a failure to pay any Fees due by the relevant Due Date) which is not capable of remedy or which it fails to remedy within 14 calendar days (or as otherwise agreed by Swish ICT), or other repeated breaches of the Contract by the Customer; or
13.1.5 Swish ICT reasonably anticipating that any of the events mentioned above is about to occur.
13.2 In the event of termination pursuant to clause 13.1 above Swish ICT shall, for the avoidance of doubt, be entitled to:
13.2.1 recover as damages from the Customer all reasonable costs which Swish ICT sustains due to such termination; and
13.2.2 where the Customer is being provided with ongoing Services (including Managed Services), Swish ICT shall be entitled to cease provision of those Services and invoice any Fees which would have been payable over the anticipated period of delivery of those Services.
13.3 In the event of such termination, should the Customer have failed to make payment in full for any Software, then the Customer shall immediately cease use of all Software (and any updates of same) and, at its own expense, remove from all computers, communications systems and other electronic devices under its control all copies of the Software (and updates) and return or destroy them (certifying in writing to Swish ICT that such destruction has taken place).
13.4 For a period of six months following termination of the Contract the Customer shall, on not less than two days’ notice, permit authorised representatives of Swish ICT to enter its premises during normal business hours for the purposes of confirming that the Customer has complied with its post termination obligations.
13.5 The exercise of the rights conferred by this clause 13 shall be without prejudice to any other right enjoyed by Swish ICT pursuant to these Terms or by law.
14.1 The Customer will not be entitled to subcontract, assign the benefit or delegate the burden of the Contract without the prior written consent of Swish ICT which it may in its absolute discretion refuse.
14.2 Swish ICT shall be free to subcontract any or all of its rights and obligations under a Contract or these Terms as it sees fit, and may assign the benefit or delegate the burden of any Contract.
15 Confidentiality and Data Protection
15.1 For the purposes of these Terms, Confidential Information means all information, technical data or know-how, (whether written, oral or by another means and whether directly or indirectly) relating to and/or provided by one of the Parties whether created before or after these Terms come into force including Personal Data, research, products, services, customers markets, software, developments, inventions, processes, designs, drawings, engineering, marketing or finances, which is reasonably deemed to be confidential or proprietary. Confidential Information includes the information of a third party that is in the possession of one of the Parties and is disclosed to the other Party in confidence. Confidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving Party at the time of disclosure, as shown by the receiving Party’s files and records immediately prior to the time of disclosure; or (ii) prior to or after the time the disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving Party, or (iii) is expressly approved in writing for release by the disclosing Party or (iv) had been independently developed by the receiving Party without the use of any Confidential Information of the other Party.
15.2 Each Party agrees with the other in respect of all Confidential Information:
15.2.1 to keep the Confidential Information in strict confidence and secrecy;
15.2.2 not to use the Confidential Information save for complying with its obligations under these Terms;
15.2.3 not to disclose the Confidential Information to a third party (except to the extent compelled to by law); and
15.2.4 to restrict the disclosure of the relevant and necessary parts of the Confidential Information to such of its employees, agents, subcontractors and others who of necessity need it in the performance of their duties as envisaged by the Contract, and in those circumstances to ensure that those employees and others are aware of the confidential nature of the Confidential Information; provided however that where a part of the Confidential Information is already or becomes commonly known in the trade (except through a breach of the obligations imposed under these Terms) then the foregoing obligations of confidentiality in respect of such part shall not apply or shall cease to apply (as the case may be).
15.4 Swish ICT will:
15.4.1 operate safety and security measures and procedures consistent with Good Industry Practice for the prevention of unauthorised access or damage to any and all locations in which Personal Data is stored and/or Processed by Swish ICT; and
15.4.2 take appropriate technical and organisational measures to protect Personal Data Processed by Swish ICT against unauthorised or unlawful Processing and accidental loss, destruction, alteration or disclosure and ensure that, having regard to the state of technological development and their cost of implementation, those measures ensure a level of security appropriate to (a) the harm that might result from such Processing, loss, destruction or damage; and (b) the nature of such Personal Data.
15.5 Where the Customer intends to, or might, include Personal Data in their use of the Products and/or Services purchased from Swish ICT, they will inform Swish ICT at the time a Quote is requested. Where so informed, Swish ICT will identify whether Swish ICT or a third party is the Data Processor for the purposes of the Processing, communicate that to the Customer at the point of Quote, and;
15.5.1 to the extent that Swish ICT itself Processes Personal Data on behalf of the Customer, Swish ICT will:
- 1 enter into a Data Processing Agreement with the Customer where required by the Data Protection Laws;
- 2 Process such Personal Data only in accordance with the Customer’s instructions in that Data Processing Agreement, or as required by law or regulation; and
- 3 promptly inform the Customer if it receives a request or notice from a Data Subject seeking to exercise their rights under the Data Protection Laws in respect of such Personal Data, and (at the Customer’s cost) comply with the Customer’s reasonable instructions with respect to that request or notice; or
15.5.2 to the extent that a third party performs Processing activities as the result of a purchase by the Customer from Swish ICT of the Products or Services of that third party, Swish ICT will:
- 1 require that third party to meet the obligations set out in clause 15.4; and
- 2 facilitate the conclusion of a Data Processing Agreement between those parties, on the basis that the Processing relationship exists between the Customer and the third party (so that the third party is the direct Data Processor to the Customer’s Data Controller).
15.6 In order to meet its obligations under a Contract (and, prior to that, to be able to obtain relevant information to enable a Quote to be prepared), Swish ICT will need to provide certain of the Customer’s Personal Data to their supply chain, specifically the names and contacts details of the individuals at the Customer who are responsible for the subject matter of that Contract (or Quote). Where the Customer is purchasing certain Products or Services, it may also be necessary to provide the names and contacts details of the individual users of those Products or Services. Unless stated otherwise in a Data Processing Agreement between Swish ICT and the Customer, this will be the extent of Swish ICT’s Processing of Personal Data on behalf of the Customer. Where required, the Customer confirms that it has obtained the necessary consents to share this Personal Data, and authorises Swish ICT to undertake the activities set out in this clause 15 to enable to creation or performance of a Contract.
15.7 The Customer authorises and instructs Swish ICT to take the steps in this clause 15 (and any additional steps set out in a Customer Schedule, but not any actions required by the Data Processing Agreement, for which authority is contained therein) in the Processing of Personal Data on its behalf as Swish ICT reasonably considers necessary to the performance of its obligations under the Contract (or with the intention of creating such a Contract), and authorises Swish ICT to give equivalent instructions to any relevant subcontractor on its behalf, warrants that it is and will remain entitled to give the instruction and authorisation in this clause 15, and confirms it will advise Swish ICT if that position changes in respect of any of the Personal Data.
15.8 Each Party will promptly inform the other if:
15.8.1 it has reason to believe that the activities of the other Party are in breach of the Data Protection Laws; and/or
15.8.2 it suspects or uncovers any breach of security in any respect which could impact the Personal Data or Confidential Information of the other Party, and the Party which has been breached will use all commercially reasonable endeavours to verify and, if verified, promptly remedy such breach.
15.9 The obligations in this clause 15 shall survive the termination of any Contract.
16 General Terms
16.1 Any demand, notice or other communication shall be in writing and may be served by hand or prepaid first-class post to the registered address of the intended recipient.
16.2 No amendment of these Terms during the period of a Contract shall be binding in respect of that Contract unless executed in writing and signed by authorised representatives of Swish ICT and the Customer. Notwithstanding the foregoing, Swish ICT reserves the right to alter these Terms at such time and in such manner as it sees fit and shall publish the then-current version of the Terms at www.swish-ict.com/terms-and-conditions. The version of the Terms which is current at the time of the commencement of a Contract shall apply to that Contract, unless otherwise agreed in writing. Swish ICT will supply a hard copy of these Terms on Customer request.
16.3 The failure of Swish ICT at any time to enforce a provision of these Terms shall not be deemed a waiver of such provision or of any other provision of these Terms or of Swish ICT’s right thereafter to enforce any such provision(s).
16.4 The Customer will not solicit, induce to terminate employment, or otherwise entice away whether directly or indirectly through another firm or company, any employee of Swish ICT professionally or otherwise directly associated with Swish ICT during the term of the Contract or for 12 months thereafter. For the avoidance of doubt, there is no restriction on the Customer employing any person who is employed or acting for Swish ICT where that person responds to a bone fide public advertisement for employees.
16.5 No third party may enforce any provision of these Terms by virtue of the Contracts (Rights of Third Parties) Act 1999 or any other method.
16.6 Together with the Customer Schedule and any EULA, these Terms are the complete and exclusive agreement between the Parties with respect to the subject matter of a Contract, and supersede any previous or contemporaneous agreement, proposal, commitment, representation, or other communication whether oral or written between the Parties regarding the subject matter of that Contract. These Terms prevail over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even if signed and returned.
16.7 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party (and on any resale of a Product by the Customer, such resale shall be made by the Customer as principal), or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
16.8 If a provision in these Terms is held by any competent authority to be invalid or wholly or partly 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 clause shall not affect the validity and enforceability of the rest of these Terms or any Contract.
16.9 The formation, construction, performance, validity and all aspects whatsoever of these Terms shall be governed by Scottish Law and the Parties hereby submit to the exclusive jurisdiction of the Scottish courts.