INTERPRETATION
The following expressions have the following meanings:
‘Customer’ the person(s), firm or company named on the Accepted Quote
‘Computer Software’ any programs provided in connection with the Service, further details of which are set out in the Accepted Quote
‘Conditions’ the standard terms and conditions of sale as set out in this document
‘Contract’ the Accepted Quote and these Conditions
‘GDPR~ The General Data Protection Regulation 2016/679
‘Files’ all files and data whether electronic or in hard copy, and other materials provided by the Customer in relation to the provision of the Computer Software and the Equipment
‘Equipment’ means all equipment sold by Bay Digital Solutions to the Customer pursuant to this Agreement
‘Accepted Quote’ a quote setting out the Computer Software and/or Equipment and/or Services to be supplied which has been accepted unconditionally by the Customer and Bay Digital Solutions where such are to be provided by Bay Digital Solutions Solutions.
‘Materials’ means any documentation, instructions, training manuals or other information stored in written or electronic form provided by Bay Digital Solutions to the Customer
‘Price’ the price to be paid by the Customer as specified in the Accepted Quote
‘Services’ the services to be provided by Bay Digital Solutions to the Customer as set out in the Accepted Quote
‘Service Description’ a description of the Services to be provided by Bay Digital Solutions which has been unconditionally accepted by the Customer and is contained in the Accepted Quote and consists of corrective maintenance and includes the necessary repair, adjustment, the supply and fitting of replacement parts, and the provision of all materials necessary for the satisfactory operation of the ‘Equipment’ but which in any event shall exclude : (a) Repairs rendered necessary by reason of damage caused by accident, carelessness or misuse by the ‘Customer’, (b) any other reasons outside Bay Digital Solutions reasonable control e.g. failure or variation of electricity supply, image degradation of visual displays, (c) adjustments carried out by unauthorized persons, (d) changes and alteration in the Equipment’s specifications, (e) Customer programming errors,(f) renewal of consumable supplies e.g. removable media, Printer ribbons, Printer heads, and Laser printer consumables, and (g) an unusually high level of maintenance caused in the reasonable opinion of Bay Digital Solutions by the age of the equipment or failure by the Customer to carry out appropriate levels of maintenance prior to Bay Digital Solutions engagement by the Customer.
‘Support and Maintenance Services’ the maintenance of Equipment from time to time by telephonic and remote diagnosis of Equipment and service failures and regular help line support and the provision of updates.
‘Term’ consecutive periods of 12 months, subject to payment as set out in the Accepted Quote being received.
1. KEY POINTS
Bay Digital Solutions will only perform and provide computer services, repairs, and upgrades as requested by the customer. Bay Digital Solutions will conduct honest, reasonable, and considerate services. The goal is to provide the highest quality of service and support, but specific results cannot be guaranteed.
There may be circumstances under which equipment cannot be repaired. It will have to be rebuilt or upgraded. (Examples: Age of PC, repair/replacement parts obsolete, memory chips, motherboards, etc.)
The length of time required to service/repair your computer cannot be predicted not guaranteed.
The customer understands that in the process of working on your computer equipment, there is a potential for data loss. You agree that you have made the necessary backups of your data so that, in the event of such loss, the data can be restored. Bay Digital Solutions will not be responsible for data loss.
Dissembling your device can result in minor cosmetic damage, this is an sometimes inevitable during the process of taking something apart which is not designed to be disassembled. BDS will take all due care with your device but cannot be held responsible for minor cosmetic damage resulting from the repair process. BDS also cannot be held responsible for any pre-existing structural issues which come to light during the disassembly of a device.
You authorize the technician(s) providing the service or repair to install anti-virus and any other necessary software on your computer to perform required services. All repair software will be deleted / uninstalled upon completion of the service.
2. QUOTATIONS AND ESTIMATED COSTS
An estimate of cost for work will be provided before performing computer services/repairs. Estimated costs are not guaranteed and may alter on further inspection.
Initial inspection in order to provide an estimate or quote may be chargeable.
In the case that there is an unforeseen deviation from an estimated or quoted cost, beyond the amount stated, every effort will be made to contact you and inform you of the situation and receive authorization to continue or stop at the estimate limit. In the case that you cannot be reached, work will stop until contact is established. Once reached, your decision to continue or stop will be enacted by Bay Digital Solutions.
Computer services/repairs are charged as stated as per the estimate/quotation provided and any other agreed costs. Charges will be calculated in half hour increments, and carry a minimum one hour charge.
3. PAYMENT TERMS
Full payment is due immediately upon completion of services, upgrades, or repairs. Goods will not be released until payment is made and cleared.
Computer parts, hardware, or/and software that are required may require payment in advance. In the event contracted work is terminated there will be a charge to cover return of the items purchased. If goods cannot be returned they will become the property of the customer on final payment of the full purchase price.
If any sum payable under the Contract is not paid within 7 days after the due date then (without prejudice to Bay Digital Solutions other rights and remedies) Bay Digital Solutions reserves the right to:
- Suspend performance of the Services or any other obligations until all amounts owed have been paid; and/or
- Charge interest on such sum on a day to day basis (as well after as before any judgement) from the date or last date for payment to the date of actual payment (both dates inclusive) at the rate of 3 per cent above the base rate of Barclays Bank plc from time to time in force compounded quarterly. Such interest shall be paid on demand.
The Customer shall not be entitled to withhold payment of any amount due to Bay Digital Solutions under the Contract by reason of any disputed claim by the Customer in connection with the Contract and the Customer shall make all such payments without any deduction whether by way of set off, counterclaim, discount or otherwise.
Bay Digital Solutions accepts cash, cheques and bank transfers.
4. LIABILITY
Service(s) are provided in an effort to fix, upgrade, install or otherwise repair the IT system(s) for which you request such service(s). Your system will not be intentionally harmed. Our primary goal is to fix your computer, not damage it.
At the time of initial inspection it is impossible to anticipate every possible weakness or issue that may be present. Bay Digital Solutions makes every effort to ensure that repairs/installations are undertaken with the greatest of care but cannot be held liable for damage which could not be foreseen during the initial inspection.
In the case of accidental damage of data to your system or data loss caused by already existing problems in your system such as viruses, poorly configured software, or hardware problems/failures; You agree to hold Bay Digital Solutions and any person(s) associated with Bay Digital Solutions or involved in the work being done for you harmless from damages resulting from such problems.
5. WARRANTY, PERFORMANCE AND LIABILITY
Any claim by the Customer in relation to unsatisfactory performance or unsatisfactory consequential impacts of performance must be made within 14 days of the completion of the Services by Bay Digital Solutions.
The Customer acknowledges the inherent risks of damage to the Equipment, the Software, data and other property including, without limitation, risks due to destruction of or damage to equipment, machines, media or data, inability to repair the Equipment, inability to recover data and the Customer shall be responsible for providing insurance or shall otherwise assume liability in relation to all such risks and incidents of damage that may occur to the Equipment, the Software, data and other property provided by the Customer to Bay Digital Solutions under the Agreement during or as a result of the performance of the Services.
Bay Digital Solutions gives a 14 day warranty on repairs carried out by us on work involving virus removal. However this is only applicable if it is the same virus and the infection has not happened after collection by you. It is also subject to your having an appropriate Anti-Virus/Internet Security system installed. If the Anti-Virus / Internet Security system is either removed or disabled then we will not be able to give any warranty at all.
If later found that the service or repair was incorrectly diagnosed by the technician then Bay Digital Solutions will perform the repair/service free of any labour charge up to the cost of the original labour charge. New parts will be charged to the customer.
6. DATA
The customer is responsible for the backup of data on their computer. At the request of the customer, Bay Digital Solutions will back up data from agreed locations, for an additional fee.
The data backup process is an automated software that copies files to be backed up to one of the Bay Digital Solutions file servers. Backed up files can be stored on these servers for up to three (3) months after the invoice date at which point they will be deleted.
Windows and program files folders will not be backed up without a specific request from the customer.
Bay Digital Solutions will not be held responsible for files that are not backed up and lost.
Bay Digital Solutions is in no way responsible for the content of the customer’s files
7. SOFTWARE
The customer is responsible for the supply of appropriate licence keys and software install media of any software they own and require installing.
8. EQUIPMENT INSTALLATION
Bay Digital Solutions will use all reasonable endeavours to achieve installation by any specified or requested date, but each such date is to be treated as an estimate only and time shall not be of the essence. Where payment is to be made by the Customer before installation of the Equipment, Bay Digital Solutions may withhold installation until such payments have been made.
The Customer will co-operate with Bay Digital Solutions to try to achieve installation by the relevant dates. If any delay is caused by the Customer and Bay Digital Solutions incurs unavoidable costs the Customer shall pay Bay Digital Solutions a sum or sums equivalent to those costs.
Subject to the Customer ensuring any relevant information is made known to Bay Digital Solutions, the Customer is responsible for ensuring the Computer Software can be used on the Equipment set out in the Accepted Quote.
It is the Customer’s responsibility to ensure that the relevant software backup securities are taken prior to Bay Digital Solutions undertaking the Service provision and to ensure that all of the equipment and software programs are fully functional after Bay Digital Solutions have provided the Service, prior to the Bay Digital Solutions representative’s completion of the relevant task.
9. PRIVACY AND DATA PROTECTION
Bay Digital Solutions has strict security procedures covering the storage and disclosure of any of the Customer’s confidential information in order to prevent unauthorised access to comply with the GDPR.
Bay Digital Solutions will in relation to personal data (as defined in the GDPR) supplied to it by the Customer not act as data processor on behalf of the Customer and in dealing with it will act only in accordance with the instructions of the Customer as reflected in these Conditions or as given by the Customer to Bay Digital Solutions from time to time
10. TRAINING
Bay Digital Solutions shall provide such initial training for the Customer in respect of the use of any system supplied as Bay Digital Solutions deems necessary. The Customer shall comply with such training and any failure to do so will entitle Bay Digital Solutions to charge the Customer with reasonable additional costs which such failure gives rise to.
11. SUPPORT AND MAINTENANCE
Bay Digital Solutions will provide telephone support if the appropriate system is in place to enable such support. If on-site support is required then a charge at the rate as noted within the Accepted Quote or otherwise agreed in writing with the Customer will be applicable.
12. LIMITATIONS AND LIABILITY
Bay Digital Solutions entire financial liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Customer under the Contract shall, subject to Condition 10.2, be limited to the lesser of the total payment received by Bay Digital Solutions from the Customer in the twelve months preceding the incident or the actual loss suffered by the Customer save that nothing in these Conditions excludes or limits the liability of Bay Digital Solutions for death or personal injury caused by Bay Digital Solutions negligence or for fraudulent misrepresentation.
If the Customer’s loss is recoverable under any relevant insurance policy held by Bay Digital Solutions and Bay Digital Solutions considers it commercially reasonable to do so then Bay Digital Solutions liability shall be limited by such sum as is so recoverable.
Neither party shall be liable to the other in respect of any loss of profit, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the other party as a result of an action brought by a third party) even if such loss was reasonably foreseeable and the party incurring the loss had notified the other party of the possibility that such loss would be incurred.
Although Bay Digital Solutions will take all reasonable precautions in accordance with good industry practice against computer viruses, it does not warrant that any documents or files transferred to the Customer will be virus free or will not cause interruption to the Customer’s own systems.
Where Computer Software is arranged by Bay Digital Solutions to be licensed directly to the Customer, the Customer acknowledges that it has responsibility to comply with the terms of such license and will indemnify Bay Digital Solutions against any losses, expenses damages or claims which Bay Digital Solutions may suffer as a result of a breach of such license by the Customer and the Customer further acknowledges that Bay Digital Solutions does not act as an agent of the licensor in arranging such license.
Any Equipment supplied by Bay Digital Solutions to the Customer under the Contract shall not be manufactured by Bay Digital Solutions and Bay Digital Solutions will therefore endeavour to transfer to the Customer the benefit of any warranty or guarantee given to Bay Digital Solutions in respect of such Equipment but will not otherwise be liable for any fault in the Equipment.
13. TERMINATION
Without prejudice to any other rights to which it may be entitled, either party may give notice in writing to the other terminating the Contract with immediate effect if:
- The other party commits any breach of any of the terms of the Contract (other than in respect of the Service Levels) and (if such a breach is remediable) fails to remedy that breach within a reasonable period (as set out in writing by the non-breaching party of receiving that party’s request in writing so to do.
- The other party (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the other party or any steps are taken (including, without limitation, the making of an application or the giving of any notice) by the other party or any other person for the appointment of an administrator in respect of the other party, or any proceedings are commenced relating to the insolvency or possible insolvency of the other party or if the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt;
- The other party suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the Contract and these Conditions or any other contract between the parties to the Contract and these Conditions, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the other party ceases to trade;
Bay Digital Solutions may terminate the Contract with immediate effect by notice in writing if it has reason to believe the Customer is suffering serious adverse financial circumstances.
14. CONSEQUENCES OF TERMINATION
Any termination of the Contract howsoever caused:
- Shall not affect any rights or liabilities which have accrued prior to the date of termination;
- Shall not affect the coming into force or the continuance in force of any provision of the Contract and these Conditions which is expressly or by implication intended to come into or continue in force on or after such termination.
All payments due under the Contract shall become due immediately upon termination and Bay Digital Solutions will issue the Customer with a final invoice (which shall also be immediately due and payable) covering all outstanding charges under the Contract.
15. DISPUTES
Bay Digital Solutions and the Customer shall use all reasonable endeavours to resolve any dispute arising in connection with the Contract. In the event that such a dispute cannot be resolved, the matter shall be determined by the English Courts.
16. FORCE MAJURE
Bay Digital Solutions reserves the right to vary the terms of the Contract (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Bay Digital Solutions including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 180 days, then Customer shall be entitled to give not less than 30 days’ notice in writing to Bay Digital Solutions to terminate the Contract.