Terms of Service
Definitions
“Supplier” shall mean its successors and assigns or any person and/or businesses including but not limited to ERA the Web design division of Elaine Ryan & Associates acting on behalf of and with the authority of Elaine Ryan & Associates
“Client” shall mean the person or entity described as such on the invoices, application for credit, quotation, work authorisation or any other forms to which these terms and conditions apply, and shall mean any person acting on behalf of and with the authority of such person or entity.
- “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
- “Goods” shall mean Goods supplied by the Supplier to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Supplier to the Client.
- “Services” shall mean all services supplied by the Supplier to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
- “Price” shall mean the cost of the Goods and/or Services as agreed between the Supplier and the Client subject to clause 3 of this contract.
Acceptance
- Any instructions received by the Supplier from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Supplier shall constitute acceptance of the terms and conditions contained herein.
- Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
- Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of the Supplier.
- The Client undertakes to give the Supplier at least fourteen (14) days notice of any change in the Client’s name, address and/or any other change in the Client’s details.
Price and Payment
At the Supplier’s sole discretion the Price shall be either;
- as indicated on invoices provided by the Supplier to the Client in respect of Services supplied; or the Supplier’s quoted Price (subject to clause 3.2) which shall be binding upon the Supplier provided that the Client shall accept the Supplier’s quotation in writing within thirty (30) days.
- The Supplier’s quotation does not include work, time or charges outside the scope of the work detailed.
- The Supplier reserves the right to change the Price in the event of a variation to the Supplier’s quotation.
- At the Supplier’s sole discretion Price will be either:
1. a fixed contract price; or 2. an hourly rate. - When the Supplier takes on work on an hourly rate the Client may be given an estimate of time to completion. Such estimates are not binding and all hours employed on the Client’s behalf shall be charged at the agreed rate.
- A project initiation fee equal to 30% of the total Price will be required on acceptance by the Supplier of the Client’s purchase order.
- Orders will only be accepted upon the Supplier’s contract being duly signed by both the Supplier and the Client.
- Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.
- Payment will be made by cheque, or by direct credit, or by any other method as agreed to between the Client and the Supplier.
- VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Delivery of Goods and/or Services
- The Supplier may choose to estimate a completion date for a Client’s project. Every effort shall be made by the Supplier to meet all deadlines but no guarantee is offered by the Supplier. The Supplier shall not be liable for any loss or damage, including but not limited to loss of profit, suffered due to a project being completed after the estimated completion date.
- The Client shall make all arrangements necessary to take delivery of the Goods and/or Services whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods and/or Services as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery.
- Sign-off is required within 3 days from delivery. If a formal acceptance of delivery is not received, then an automatic acceptance shall be entered by the Supplier and the final invoice will be issued.
- The failure of the Supplier to deliver shall not entitle either party to treat this contract as repudiated.
- The Supplier shall not be liable for any loss or damage whatever due to failure by the Supplier to deliver the Goods and/or Services (or any of them) promptly or at all.
Risk
- If the Supplier retains ownership of the Goods and/or Services nonetheless, all risk for the Goods and/or Services passes to the Client on delivery.
- If any of the Goods and/or Services are damaged or destroyed following delivery but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Goods and/or Services. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
Title
It is the intention of the Supplier and agreed by the Client that ownership of the Goods shall not pass until:
- the Client has paid all amounts owing for the particular Goods and/or Services, and
- the Client has met all other obligations due by the Client to the Supplier in respect of all contracts between the Supplier and the Client.
Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership or rights in respect of the Goods shall continue. - It is further agreed that:
1. until such time as ownership of the Goods and/or Services shall pass from the Supplier to the Client the Supplier may give notice in writing to the Client to cease use of the Goods. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
2. the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Supplier.
Client’s Disclaimer
- The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Supplier and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgment.
Defects
- The Client shall inspect the Goods and/or Services on delivery and shall within seven (7) days notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Supplier an opportunity to inspect the Goods and/or Services within a reasonable time following delivery if the Client believes the Goods and/or Services are defective in any way. If the Client shall fail to comply with these provisions the Goods and/or Services shall be presumed to be free from any defect or damage. For defective Goods and/or Services, which the Supplier has agreed in writing that the Client is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods and/or Services or repairing the Goods and/or Services.
- No Goods and/or Services shall be accepted for return except in accordance with 8.1 above.
Warranty
- The Supplier takes care to deliver a high quality product that complies fully with the specification defined and approved by the Client. The Supplier accepts that despite thorough testing at multiple levels coding errors causing faults may occur after final delivery.
Subject to the conditions of warranty set out in Clause 9.2 the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within twelve (12) months of the date of delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) repair the defect or remedy the workmanship.
The conditions applicable to the warranty given by Clause 9.1 are:
- The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- Failure on the part of the Client to properly maintain any Goods and/or Services; or
- Failure on the part of the Client to follow any instructions or guidelines provided by the Supplier; or
- Any use of any Goods and/or Services otherwise than for any application specified on a quote or order form; or
- The continued use of any Goods and/or Services after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
- Fair wear and tear, any accident or act of God.
- The warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Supplier’s consent.
- In respect of all claims the Supplier shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Goods and/or Services or in properly assessing the Client’s claim.
Sale of Goods Act 1893 and Sale of Goods and Supply of Services Act 1980
- This agreement is subject to the provisions of the Sale of Goods Act 1893 and the Sale of Goods and Supply of Services Act 1980 in all cases except where the Client is contracting within the terms of a trade/business (which cases are specifically excluded).
- Notwithstanding clause 10.1 nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Sale of Goods Act 1893 (in particular sections 12-15), or the Sale of Goods and Supply of Services Act 1980, or any laws or legislation governing the rights of consumers, except to the extent permitted by those Acts laws or legislation.
- In particular where the Client buys Services as a consumer the provisions of Clauses 8 and 9 and above shall be subject to any laws or legislation governing the rights of consumers.
Intellectual Property
- Where the Supplier has provided computer software and documentation, the Supplier retains ownership of the computer software and documentation, but grants a licence to the Client for use of the computer software and documentation. The Client will use any third-party software supplied by the Supplier, and identified as such, strictly in terms of the licence under which it is supplied.
- The Supplier may grant the Client a licence to use the intellectual property referred to in clause 11.1 in relation solely to the operation of the Supplier’s business. The Client shall not use or make copies of such intellectual property in connection with any work or business other than the work or business specified in writing to the Seller unless express approval is given, in writing, in advance by the Supplier. Such licence shall terminate on default of payment or any other terms of this agreement by the Client.
Default & Consequences of Default
- Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
- If the Client defaults in payment of any invoice when due, the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including legal costs on a solicitor and own Client basis and the Supplier’s collection agency costs.
- Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier exercised its rights under this clause.
- If any account remains overdue after thirty (30) days then an amount of the greater of €20.00 or 10.00% of the amount overdue (up to a maximum of €200) shall be levied for administration fees which sum shall become immediately due and payable.
- Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
- any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to meet its payments as they fall due; or
- the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Security and Charge
Despite anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
- where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Supplier (or the Supplier’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
- should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own Client basis.
- The Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Supplier or the Supplier’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
Data Protection Act 1988 & Data Protection Act 2003
The Client and the Guarantor/s (if separate to the Client) authorises the Supplier to:
- collect, retain and use any information about the Client, for the purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and
- to disclose information about the Client, whether collected by the Supplier from the Client directly or obtained by the Supplier from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing (whether before or after judgement) a default by the Client on publicly accessible credit reporting databases.
- Where the Client is an individual the authorities under (clause 15.1) are authorities or consents for the purposes of the Data Protection Act 1988 & Data Protection Act 2003.
- The Client shall have the right to request the Supplier for a copy of the information about the Client retained by the Supplier and the right to request the Supplier to correct any incorrect information about the Client held by the Supplier.
Client’s Responsibilities
It is the Client’s responsibility to:
- perform their own specific obligations and responsibilities in accordance with the terms and conditions of this contract; and
- cooperate fully and act reasonably and in good faith to assist in the timely progress and fulfillment of the Supplier’s obligations under the contract including, but not limited to, not unreasonably withholding or delaying the provision of any agreement, acceptance, information, assistance or other resource required by the Supplier and providing the Supplier with all necessary access to the Client’s premises and equipment; and
- take responsibility for all site preparation as required to enable efficient delivery and implementation of the Goods and/or Services; and
- ensure that all the Supplier’s personnel, suppliers or sub-contractors are sufficiently trained in and aware of the Client’s policies and procedures; and warrant that all information pertaining to the Client’s hardware, software or service requirements and specifications is complete, accurate and has been provided to the Supplier prior to formal agreement.
Supplier’s Responsibilities
1. It is the Supplier’s responsibility to procure for and supply to the Client the hardware and software in accordance with the terms of this Contract.
General
- Each clause of this contract is severable and distinct from the others. If any provision of these terms and conditions is or becomes invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- These terms and conditions and any contract to which they apply shall be governed by the laws of Ireland and are subject to the jurisdiction of the courts of Ireland.
- The Supplier shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Supplier of these terms and conditions.
- The Supplier shall be under no liability whatever to the Client for any loss or damages caused by any information systems implemented.
- In the event of any breach of this contract by the Supplier the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Supplier exceed the Price of the Services.
- The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Supplier.
- The Supplier may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
