1. DEFINITIONS AND INTERPRETATIONS

Accept”, “Accepted” or “Acceptance” means the fully informed acceptance by ARK COMPUTER REPAIR of an Order which is an offer from the customer to procure Equipment and/or Services.
“Charges” means the charges payable by the Customer for Services as set out in the Customer Order.
“Current Price List” means the schedule of charges for engineering, support and training set out in ARK COMPUTER REPAIR’s website.
“Delivery Certificate” means the document signed by the Customer accepting delivery of the Equipment.
“Customer Material” means the Customer’s data loaded, received, maintained or transmitted by use of the Services on the System for the Customer.
“Effective Date” means the date of emailed Acceptance by ARK COMPUTER REPAIR.
“Equipment” means hardware items of equipment supplied by ARK COMPUTER REPAIR as set out in the Customer’s order.
“Lead Time” means the time estimated by ARK COMPUTER REPAIR for performance of the Service(s) and/or delivery of the Equipment or any part thereof.
“Minimum Term” means the minimum period set out in the Order during which ARK COMPUTER REPAIR will perform the Services as set out in Appendix 1.
“Normal Support Hours” means between 09:00 and 17:30 on a Working Day.
“Order” means an offer to procure Equipment and/or Software licence(s) and/or Services submitted by a Customer in response to a Quotation that accurately reflects the Quotation.
“Premises” means the Customer’s place of business to which the Services are or will be provided unless otherwise agreed in writing by ARK COMPUTER REPAIR.
“Price” means the price payable by the Customer for Equipment as set out in the Order.
“Quotation” means the invitation from ARK COMPUTER REPAIR to the Customer to make an offer for Services and/or Equipment and/or Software licences as detailed therein, in the form of an Order.
“Relevant Requirement” means all applicable laws, statutes, regulations, codes and rules.
“Services” means the services provided by ARK COMPUTER REPAIR as set out in Appendix 1.
“Software” means the third party software product(s) supplied in non-modifiable, executable run time version by ARK COMPUTER REPAIR in or for use with Equipment and/or made available to the Customer by or on behalf of ARK COMPUTER REPAIR for use in connection with the Service(s) and licensed on the terms set out by ARK COMPUTER REPAIR’s licensors.
“Software Maintenance” means the installation of updates to the Software provided by the licensor. “Specifications” means (i) the manufacturer’s technical specifications for Equipment; and/or (ii) the functional and technical details of a software application setting out the manner in which the Software is expected to perform as provided by ARK COMPUTER REPAIR’s licensors.
“System” means 3rd party hardware and software.
“Working Day” means Monday to Friday inclusive, but always excluding any bank or public holiday in England.

2. CONTRACT & WARRANTIES

2.1 Each Party warrants that it has the right to enter into this Agreement and to fully perform all obligations applicable to it hereunder.
2.2 This Agreement embodies the entire legal and contractual relationship between the Parties relating to the subject matter hereof and, except in the case of any fraudulent misrepresentation made by either Party and/or save as may be expressly referred to or referenced herein, terminates, cancels and supersedes all prior representations, agreements or understandings (written or oral) with respect to this Agreement and its subject matter.
2.3 This Agreement becomes effective on Acceptance by ARK COMPUTER REPAIR of an Order and will continue for the Minimum Term unless terminated in accordance with this Agreement.
2.4 Every Order is subject to these terms and conditions which may not be modified or varied unless in writing by an authorised representative of ARK COMPUTER REPAIR. A list of ARK COMPUTER REPAIR’s authorised representatives is available on request. These terms and conditions shall prevail over any other conditions that may be submitted by the Customer at any time. ARK COMPUTER REPAIR reserves the right to reject any order received from the Customer in its absolute and sole discretion.
2.5 Any descriptive material provided by ARK COMPUTER REPAIR to the Customer is provided solely to assist the Customer. It does not form part of this Agreement or of any other contract and ARK COMPUTER REPAIR is not responsible for its contents. The Customer acknowledges that it is responsible for selecting Services and/or Equipment to satisfy its requirements including where the same are intended to operate in combination with other services, equipment or software not supplied by ARK COMPUTER REPAIR.
2.6 Each Order shall be regarded as a separate Agreement except where stated to the contrary.
2.7 Subject to this terms and conditions contained in this Agreement, ARK COMPUTER REPAIR hereby agrees to supply the Customer with Equipment and/or Services in accordance with the Specification, Lead Time(s) and the Order and the Customer agrees to pay the Price and/or Charges in accordance with the Order and as provided for in this Agreement.
2.8 Services will be performed during Normal Support Hours. ARK COMPUTER REPAIR warrants that it will exercise the skill, care and judgement commensurate with a professional experienced in the provision of Services and in the fulfilment of its obligations hereunder and will perform the Services in accordance with good industry practise. Notwithstanding the same, ARK COMPUTER REPAIR does not guarantee that the Services shall be continually available to the Customer. There may be occasions when Services are disrupted through an error or act of the Customer or a third party or due to circumstances outside of ARK COMPUTER REPAIR’s reasonable control.
2.9 Equipment supplied by ARK COMPUTER REPAIR under this Agreement is manufactured by third parties and is not warranted by ARK COMPUTER REPAIR. Equipment is warranted only by the manufacturer(s) to the extent set out in the Specifications. The Customer acknowledges, accepts and agrees that all claims under warranty will be made by the Customer to the equipment manufacturer. Where requested, ARK COMPUTER REPAIR shall provide such assistance as is reasonably required to assist the Customer in any warranty claim.
2.10 Software supplied or otherwise made available to the Customer under or in connection with this Agreement for the provision of the Services is third party software and is not warranted by ARK COMPUTER REPAIR. Software is warranted only by ARK COMPUTER REPAIR’s licensor(s). The Customer acknowledges that Software cannot been tested in every possible permutation and ARK COMPUTER REPAIR’s licensors do not warrant that the Specifications will meet any particular requirements or that its operation will be entirely error-free or that all program defects are capable of correction or improvement. Software is warranted by ARK COMPUTER REPAIR’s licensor(s) to perform substantially in accordance with its Specifications for a period of 30 (thirty) days from the later of supply by ARK COMPUTER REPAIR or completion of the installation Services by ARK COMPUTER REPAIR. All other warranties including any implied warranties of merchantability, satisfactory quality or fitness for purpose or ability to achieve a particular result are hereby excluded to the fullest extent permissible in law. In the case of defects in Software arising during the warranty period, ARK COMPUTER REPAIR shall liaise with ARK COMPUTER REPAIR’s licensor(s) and shall use reasonable commercial efforts to ensure that such defects are corrected within a reasonable period of time or that the Software is replaced, at ARK COMPUTER REPAIR’s licensor’s option. The Customer shall provide ARK COMPUTER REPAIR with any assistance it may reasonably require in reporting Software defects.
2.11 The Customer shall not rely upon any warranty other than those stated in this Agreement concerning the Equipment and/or Software supplied by ARK COMPUTER REPAIR under this Agreement except where such statements have been confirmed in writing and signed by a duly authorised officer of ARK COMPUTER REPAIR and expressly incorporated herein.
2.12 The warranties set out in this Agreement exclude and shall be in lieu of all other conditions and warranties express, implied, statutory or otherwise in respect of the Equipment and Software.
2.13 Notwithstanding any other term or condition of this Agreement this clause 2 sets out the Customer’s sole and entire remedy in respect of any defects in Equipment and/or Software.

3. ORDER PROCESS

3.1 At the request of the Customer, ARK COMPUTER REPAIR will provide a Quotation detailing available
Services, Equipment, Specifications, Charges, Prices and Lead Times. ARK COMPUTER REPAIR will use reasonable commercial efforts to respond to a request for a Quotation within 5 (five) working days. Unless otherwise stated all Quotations are valid for 14 (fourteen) days from the date thereof.
3.2 To make an offer to procure the Service(s) and/or Equipment and/or Software licence(s), the Customer will submit a complete and duly signed (including by electronic signature) Order to ARK COMPUTER REPAIR that ARK COMPUTER REPAIR will accept or reject.
3.3 The Customer must accompany an Order with sufficient information, including, as appropriate and necessary, confirmation of any licensing requirements and/or other authorisations and any engineering, technical or other information to enable ARK COMPUTER REPAIR to proceed with any of its obligations under this Agreement.
3.4 ARK COMPUTER REPAIR’s employees and/or agents are not authorised to make any representations concerning the Services, Software or Equipment unless confirmed by ARK COMPUTER REPAIR in writing and signed by a duly authorised officer of ARK COMPUTER REPAIR. The Customer agrees that it does not rely on any such representations that are not confirmed in writing by a duly authorised officer of ARK COMPUTER REPAIR.
3.5 Where ARK COMPUTER REPAIR Accepts an Order this Agreement becomes effective and is binding on the Parties.
3.6 ARK COMPUTER REPAIR will Accept an Order by any means that it reasonably considers appropriate.

4. RETURN OF EQUIPMENT

4.1 The return of Equipment shall be at the sole discretion of ARK COMPUTER REPAIR, but in any circumstance where ARK COMPUTER REPAIR agrees to accept return of Equipment for any reason then the Customer shall:
4.1.1 advise ARK COMPUTER REPAIR within 24 (twenty four) hours from the time of delivery of Equipment by ARK COMPUTER REPAIR of the reason(s) for the return of Equipment;
4.1.2 obtain a returns reference number from ARK COMPUTER REPAIR prior to any return of Equipment;
4.1.3 properly pack the Equipment in the original packing and include a detailed packing list;
4.1.4 return the Equipment in the condition in which it were received to arrive at the address given by ARK COMPUTER REPAIR for returns within 5 (five) working days from the date of delivery of Equipment to the Customer; and
4.1.5 take no action to effect any warranties that may cover the Equipment.
4.2 ARK COMPUTER REPAIR shall be entitled to levy on the Customer a reasonable administration charge amounting to no more than the cost of return delivery and labour incurred in handling the return and the Customer shall pay the same to ARK COMPUTER REPAIR within 14 (fourteen) days of invoice.

5.0 GENERAL TERMINATION PROVISIONS

5.1 ARK COMPUTER REPAIR may, without prejudice to its other rights or remedies, terminate this Agreement or any part thereof with immediate effect by notice in writing if the Customer ceases or threatens to cease to carry on the whole or substantially the whole of its business.
5.2 ARK COMPUTER REPAIR may, without prejudice to its other rights or remedies, terminate this Agreement or any part thereof with immediate effect by notice in writing if an event of Force Majeure prevents ARK COMPUTER REPAIR from performing its material obligations for more than 90 (ninety) days.
5.3 ARK COMPUTER REPAIR reserves the right to terminate and/or suspend this Agreement or any part thereof with immediate effect and without liability in the event that the Customer and/or any member, director, partner, officer, employee, agent or sub-contractor thereof commits or is alleged to have committed any offence of corruption or bribery in contravention of any law, rule or regulation governing the conduct of either Party (“Illegal Act”).
5.4 Notwithstanding clause 5.3 above, ARK COMPUTER REPAIR shall act in a reasonable and proportionate manner having regard to such matters as the gravity of, and the identity of the person performing, the Illegal Act.
5.5 ARK COMPUTER REPAIR may terminate provision of the Services or part thereof at any time by serving not less than one month’s prior written notice on the Customer specifying the Services (or part thereof) that will no longer be provided and date of cessation.
5.6 On expiry of the Minimum Term the Customer may terminate provision of the Services or part thereof at any time by serving not less than three month’s prior written notice on ARK COMPUTER REPAIR specifying the Services (or part thereof) that are to be terminated and date of cessation.
5.7 Without prejudice to any other rights or remedies ARK COMPUTER REPAIR may have either under this Agreement or at law, ARK COMPUTER REPAIR may terminate this Agreement or part thereof with immediate effect by serving notice in writing on the Customer: (a)  in the event that the Customer is in default in its performance or observance of any of its obligations under this Agreement or of any Relevant Requirement; or (b)  if ARK COMPUTER REPAIR at its sole discretion considers a breach of the Customer’s obligations to be remediable and the customer fails to remedy the such breach within 7 (seven) days from receipt of a notice from ARK COMPUTER REPAIR specifying the breach and actions required to remedy.
5.8 Without prejudice to its other rights under this Agreement or at law, ARK COMPUTER REPAIR may terminate this Agreement and/or provision of Services and/or Equipment or part thereof, permanently or temporarily, with immediate effect by serving written notice on the Customer if: (a) the Customer fails to make any payment to ARK COMPUTER REPAIR on or before its due date; or (b) any licence or other agreement pursuant to which ARK COMPUTER REPAIR provides the Services expires or is revoked; or (c) a licence under which the Customer has the right to operate its computer network or the Software is revoked or amended (and not replaced by an equivalent licence or right) so that ARK COMPUTER REPAIR is not permitted by law to provide the Services to the Customer; or (d) ARK COMPUTER REPAIR reasonably believes that the Services are being used in a way that is prohibited by this Agreement.
5.9 Where any Services or part thereof is terminated under 5.8(a) above and payment of overdue Charges is received within 7 (seven) days of such termination, ARK COMPUTER REPAIR may at its discretion reinstate the terminated Services subject to receipt of a reinstatement fee of £50 (fifty pounds) for each terminated Service to be reinstated.
5.10 Where reinstatement of any terminated Service does not take place within 7 (seven) days, any subsequent reinstatement may take place at ARK COMPUTER REPAIR’s absolute discretion and is subject always to the Customer paying ARK COMPUTER REPAIR’s reinstatement charges which are available on request from ARK COMPUTER REPAIR.
5.11 Where the Customer seeks to terminate this Agreement other than as set out herein and ARK COMPUTER REPAIR accepts such termination or where ARK COMPUTER REPAIR terminates this Agreement due to the Customer’s breach, the Customer shall pay to ARK COMPUTER REPAIR (a) all sums due up the date of termination; plus (b) the Charges for the remainder of the Minimum Term less a discount of 50% (fifty percent), such sum payable as liquidated damages and agreed as representing a genuine pre-estimate of ARK COMPUTER REPAIR’s probable loss.
5.12 Termination of the Services (in whole or in part) shall not affect any then pre-existing liability of the Customer under this Agreement or affect any right of ARK COMPUTER REPAIR to recover damages in respect of any breach by the Customer of the terms of this Agreement.

6. DELIVERY OF SERVICES AND/OR EQUIPMENT

6.1 The Customer acknowledges that time for delivery shall not be of the essence. Lead Times advised by ARK COMPUTER REPAIR shall not be binding and are indicative only unless otherwise agreed in writing by an authorised representative of ARK COMPUTER REPAIR for a specific Order.
6.2 Unless stated otherwise in this Agreement, delivery of all Equipment shall be to the Customer’s premises, the address of which is set out on the Order.
6.3 In the event that the Customer requires delivery terms different from those contained herein, the Customer may request that ARK COMPUTER REPAIR quotes a charge for such delivery terms as advised to it. If the quote is accepted by the Customer in the manner prescribed, the quote and the delivery terms to which it relates shall form part of this Agreement and shall supersede the terms herein to the extent necessary.
6.4 ARK COMPUTER REPAIR shall not be liable for any shortages in delivery or variation from Specification unless a claim in writing is made by the Customer within 5 (five) days of delivery.
6.5 Where the necessity for such has been agreed in advance and not otherwise the Customer shall sign the Delivery Certificate stating any defects or shortages. Acceptance of a delivery requiring a Delivery Certificate is deemed to occur on date of signing of the Delivery Certificate as recorded thereon. On the signing of the Delivery Certificate ARK COMPUTER REPAIR shall be entitled to invoice the Customer.
6.6 If, as a result of defects or shortages in a delivery, the Customer does not sign a required Delivery Certificate, further work may be agreed between the Parties to remedy such defects. ARK COMPUTER REPAIR shall use all reasonable commercial efforts to undertake such work without delay.
6.7 If, as a result of defects or shortages in a delivery, the Customer does not sign a required Delivery Certificate and subsequently uses the Equipment or Software or the results of Services without ARK COMPUTER REPAIR’s fully informed prior written Agreement then the Customer is deemed to have accepted the same and ARK COMPUTER REPAIR shall be entitled to raise its invoice for the delivery which shall be due and payable.
6.8 To enable ARK COMPUTER REPAIR to exercise its rights and fulfil its obligations under this Agreement including, if appropriate, installation at the Customer’s premises of Equipment and/or Software for the provision of the Services, the Customer shall, at its own expense and, where appropriate, in advance of any installation work: (a)  permit or procure permission for ARK COMPUTER REPAIR and its duly authorised representatives to have reasonable access to the Customer’s premises and computer network and/or any equipment provided by ARK COMPUTER REPAIR at all reasonable times and shall provide such reasonable assistance as ARK COMPUTER REPAIR shall request. ARK COMPUTER REPAIR will normally require access during its usual working hours but may, on reasonable request, require the Customer to provide access at other times; and (b)  obtain all necessary consents, including consents for any necessary alterations to buildings; and (c)  provide a suitable environment, accommodation and foundations, including all necessary trunking, conduits and cable trays in accordance with the relevant instal­lation standards; and (d)  take up or remove any fitted or fixed floor coverings, ceiling tiles, suspended ceiling and partition covers as ARK COMPUTER REPAIR or its authorised representatives advise are necessary and afterwards carry out any making good or decoration work required; and (e)  provide any electricity and connection points required by ARK COMPUTER REPAIR or its authorised representatives; and (f)  provide a suitable and safe working environment for ARK COMPUTER REPAIR’s employees and anyone acting on ARK COMPUTER REPAIR’s behalf.
6.9 The Customer is responsible for the safe keeping and proper operation of equipment supplied in conjunction with Services and must not add to, modify or in any way interfere with the same, nor allow anyone else, other than as authorised by ARK COMPUTER REPAIR in writing, to do so. The Customer will be liable to ARK COMPUTER REPAIR for any loss of or damage to such equipment, except where such loss or damage is due solely to Fair Wear and Tear or is caused by ARK COMPUTER REPAIR or anyone acting on its behalf.
6.10 In the event that ARK COMPUTER REPAIR is unable to deliver Equipment or perform its obligations hereunder as a result of the Customer’s failure to comply with the provisions of clause 6.8 above, ARK COMPUTER REPAIR shall be entitled to: (a)  place Equipment subject of the Order or part thereof into storage notwithstanding the packaging obligations below and make a reasonable charge to the Customer for the same; and/or (b) suspend performance of its obligations without any liability whatsoever until necessary information, permits and/or authorisations are forthcoming; and/or (c) recover from the Customer all additional costs and expenses arising to ARK COMPUTER REPAIR and all losses and damages for which ARK COMPUTER REPAIR is or becomes liable; and/or (d) terminate this Agreement in accordance with clause 5.6.

7. PAYMENT TERMS, INSURANCE AND INVOICING

7.1 The Charges applicable to any Service and the Price for Equipment shall be as stated in the Order and/or ARK COMPUTER REPAIR’s invoices.
7.2 Charges and Prices are net and are exclusive of value added tax which will be added to the Price and Charges at the prevailing rate and shall be payable by the Customer.
7.3 The Charges for each Service and Price for Equipment shall be payable without any set-off or deduction whatsoever.
7.4 The Customer shall pay all Charges due hereunder by direct debit, 7 days after the invoice date. Failure to sign up to direct debit will incur an administration charge of 5% per invoice raised. Equipment shall be invoiced on the date of despatch or collection by or on behalf of the Customer or, where separately agreed, on signature of a Delivery Certificate by the Customer. Where travel and subsistence expenses are incurred by ARK COMPUTER REPAIR, a 5% (five percent) administration charge shall be added to these expenses and such expenses as surcharged shall be payable to ARK COMPUTER REPAIR by the Customer within 14 (fourteen) days of the invoice date.
7.5 The Customer acknowledges that credit terms may be offered by ARK COMPUTER REPAIR at its absolute and sole discretion and may be subject to, amongst other, the Customer’s credit rating and receipt by ARK COMPUTER REPAIR of acceptable trade references, a deposit and/or a bank or parent company guarantee.
7.6 ARK COMPUTER REPAIR reserves the right to review any credit account at any time and to amend the credit limit or withdrawn any credit facility subject to clause 7.5 above.
7.7 Where credit terms are agreed by the Parties, save as set out at 7.4, payment of invoices shall be made within 14 (fourteen) days from the date of the invoice. In the event that the Customer fails to pay any invoice by the due date, then without prejudice to any other rights and/or remedies, ARK COMPUTER REPAIR shall be entitled at its absolute discretion to: (a) cancel all existing Orders and/or suspend any Services or part thereof and/or terminate any Services or part thereof and/or withdraw any credit facilities; and/or (b) appropriate any payment or deposit made by the Customer to such of the Charges or Price due for Services or Equipment supplied under any Order by ARK COMPUTER REPAIR to the Customer, as ARK COMPUTER REPAIR shall elect (notwithstanding any purported appropriation by the Customer); and/or (c) charge monthly interest on outstanding amounts until payment in full is received at a rate equal to 4% (four percent) per annum above the base lending rate of NatWest plc as current from time to time whether before or after judgement. Interest shall accrue notwithstanding termination for any cause whatsoever and this right to charge interest is without prejudice to ARK COMPUTER REPAIR’s right to treat non-payment of sums due from the Customer as repudiatory breach of this Agreement. Part of a month will be treated as a full month for the purpose of calculating interest; and/or (d) invoke payment from any guarantee.
7.8 Where the customer has chosen to finance the equipment by a lease the customer will sign a Certificate of Acceptance on the day the equipment is delivered and return the Certificate to ARK COMPUTER REPAIR within 24 (twenty four) hours.
7.9 Until payment for the Equipment is received by ARK COMPUTER REPAIR, the Customer shall, at its expense, insure the same with a reputable insurance company on an all risks basis for its full replacement value, and shall ensure that ARK COMPUTER REPAIR is named on the insurance policy.
7.10 ARK COMPUTER REPAIR may request the Customer to provide it with certificates of insurance. Certificates shall be provided within 5 (five) Business Days of such request. Failure to provide such certificates may be taken by ARK COMPUTER REPAIR to indicate that the Customer has failed to meet its obligations to provide the insurance cover required under this Agreement. The Customer shall, if requested, also provide ARK COMPUTER REPAIR with updated certificates on the renewal anniversaries of any policies required under this clause.

8. INTEROPERABILITY

8.1 Data networks and equipment are being continually developed and upgraded. Therefore the Customer acknowledges that, save to the extent set out in the Specifications, Equipment and/or Software is not guaranteed to inter-operate with a network or equipment supplied by a third party. The Customer is responsible for ensuring that such interoperability has been fully tested to its satisfaction.

9. INTELLECTUAL PROPERTY

9.1 All intellectual property rights, including but not limited to the right to patent, copyright, trademarks and design rights in the Services and/or Equipment and/or arising and created under or in connection with this Agreement shall remain vested in and/or automatically and immediately upon creation vest in ARK COMPUTER REPAIR and/or its licensors.
9.2 If the Customer’s use of Equipment and/or Software in accordance with the Specification gives rise to any claims of infringement or alleged infringement of any third party intellectual property right published or acquired at the date of this Agreement, the Customer shall make no admission that is or may be prejudicial to ARK COMPUTER REPAIR and/or its licensors in respect of such infringement or alleged infringement, and shall immediately notify ARK COMPUTER REPAIR of such claim. On behalf of the Customer, ARK COMPUTER REPAIR shall notify its licensor(s) of such a claim and subject to the licensor(s) indemnifying and holding harmless ARK COMPUTER REPAIR and the Customer from and against all losses, damage, costs and expenses arising from or in connection with such infringement or alleged infringement, ARK COMPUTER REPAIR shall pass to its licensor(s) the right to conduct any litigation that may ensue and the right to conduct all negotiations for a settlement of such claim.
9.3 The Customer warrants that any design or instruction furnished or given to ARK COMPUTER REPAIR by the Customer shall not cause ARK COMPUTER REPAIR to infringe any third party intellectual property right in the performance of ARK COMPUTER REPAIR’s obligations under this Agreement.
9.4 Save as provided in this clause 9, ARK COMPUTER REPAIR shall have no liability howsoever arising in respect of any infringement or alleged infringement of third party intellectual property rights.

10.  CUSTOMER OBLIGATIONS

10.1 During the term of the Agreement the Customer shall: (a) provide, free of charge, reasonable usage of machine time, communications, stationery, media, suitable working accommodation and access deemed necessary by ARK COMPUTER REPAIR to fulfil its obligations under this Agreement and shall provide an appropriate environment or platform to enable ARK COMPUTER REPAIR to provide the Services or test run any Equipment or Software and, in particular, the Customer warrants to ARK COMPUTER REPAIR that the Customer shall provide an environment capable of receiving the Services; (b) furnish ARK COMPUTER REPAIR promptly upon receipt of a request such information as ARK COMPUTER REPAIR may reasonably require for the provision of the Services; (c) nominate prior to the provision of any of the Services an authorised representative to be its prime point of contact with ARK COMPUTER REPAIR during the continuance of the Agreement; (d) ensure the accuracy and validity of all data and technical information provided to ARK COMPUTER REPAIR (e) allow ARK COMPUTER REPAIR reasonable access to its employees for the purpose of investigation and discussion in connection with the Agreement and ensure that its employees cooperate fully with ARK COMPUTER REPAIR in relation to the provision of the Services; (f) provide free and safe access to the Customer’s premises as is deemed necessary by ARK COMPUTER REPAIR to comply with its obligations under the Agreement. (g) ensure that equipment provided by ARK COMPUTER REPAIR for the purpose and provision of the Services shall not be modified, changed or removed without prior written permission of ARK COMPUTER REPAIR. Where such equipment is modified, changed or removed then the cost of restoring or replacing the equipment shall be recovered from the Customer.
10.2 The Services are supplied on the basis that the Customer will use its best endeavours to prevent abuse or fraudulent use thereof. Abuse and fraudulent use of the Services shall include (without limitation): (a) obtaining, or attempting to obtain, the Service or part thereof by rearranging, tampering with, or making connection with any facilities of any Software licensor, or by any trick, scheme, false representation or false credit device, or by or through any other fraudulent means or devices whatsoever, with intent to avoid payment, in whole or in part, of the regular charges for the Services; (b) attempting to, or actually obtaining, accessing, altering, or destroying the data files, programs, procedures and/or information of ARK COMPUTER REPAIR, its Software licensors or of another customer of the same; (c) using the Services in such a manner as to interfere unreasonably with the use of the Services by any other user or authorised person.
10.3 It is a condition of this Agreement on the Customer that the Customer shall use the Services in accordance with the Acceptable Use Policy of Software licensors and in particular (but without limitation) the Customer shall not: (a) send any message, email or other communication which, under the laws of England and Wales or, where appropriate, under international laws, conventions, codes or regulations applicable to the Internet: (i) is in breach of those laws, codes or regulations including but not limited to infringement of copyright and other intellectual property rights, defamation, theft, fraud, drug-trafficking, money-laundering and terrorism; (ii) may incite violence, sadism, cruelty or racial hatred; (iii)may facilitate prostitution or paedophilia; (iv)is pornographic, obscene, indecent, abusive, offensive or menacing; (b) knowingly create and/or introduce any malware, virus, worm, Trojan horse or other destructive or contaminating program or advise any other party how to do so; (c) invade the privacy of other users of the Services or the Internet, for example by sending unsolicited emails (“spamming”) nor collect or transfer personal data on individuals without their consent;
10.4 It is a condition of this Agreement that the Customer at its own expense shall use at all times during the term of this Agreement an up-to-date virus-scanning program on all Customer’s Material.
10.5 The Customer shall maintain confidentiality of its login names, passwords and other confidential information relating to the Customer’s access to the Services.
10.5.1 The Customer acknowledges that neither ARK COMPUTER REPAIR nor its licensors operate or exercise control over, and accepts no responsibility for the content of the Customer’s Material received on the System.

11. ARK COMPUTER REPAIR’S LIABILITY

11.1 Insofar as any part of the Services depends on or is supplied by a third party, ARK COMPUTER REPAIR is not responsible for its reliability or quality unless ARK COMPUTER REPAIR is at fault.
11.2 ARK COMPUTER REPAIR will not be liable to the Customer for any failure to comply with its obligations under this Agreement to the extent that this liability arises as a result of the Customer’s failure to fulfil its obligations under this Agreement or to comply with Relevant Requirements.
11.3 ARK COMPUTER REPAIR shall indemnify the Customer against damage to tangible property other than the Equipment and death or injury to persons to the extent caused by the negligence of ARK COMPUTER REPAIR, but not otherwise subject to: (a) ARK COMPUTER REPAIR and its insurers being immediately notified of any claim and shall have full power to negotiate and settle any claims; and (b) ARK COMPUTER REPAIR’s total liability for damage to tangible property shall be limited to £50,000 (fifty thousand pounds) for any one event and £250,000 (two hundred and fifty thousand pounds) for any series of events arising from a common cause.
11.4 The Customer shall similarly indemnify ARK COMPUTER REPAIR and shall maintain or procure appropriate insurance for damage to ARK COMPUTER REPAIR’s property (to the same limit) and death and injury to persons to the extent caused by the negligence of the Customer or its personnel or contractors.
11.5 Save for liability for death or personal injury and without prejudice to any other provision of this clause 11, to the fullest extent permitted by law ARK COMPUTER REPAIR hereby excludes any and all liability for loss of profit and/or other economic loss, indirect loss, consequential loss, special loss, loss of a chance, damage to goodwill and/or loss of or damage to any other intangible asset whether that liability arises under or in connection with this Agreement, through negligence, breach of contract, breach of statutory duty or otherwise.
11.6 Without prejudice to clauses 11.3 and 11.5 above the Customer hereby agrees that:  (a) the total aggregate liability of ARK COMPUTER REPAIR to the Customer under or in connection with this Agreement and the supply of Services shall not exceed the value of Service Credits as set out at Appendix 2; and  (b) the total aggregate liability of ARK COMPUTER REPAIR to the Customer under or in connection with this Agreement and the supply of Equipment shall not exceed the Price for any Equipment in default; and  (c) ARK COMPUTER REPAIR shall have no financial liability to the Customer in respect of any defect or malfunction in the Software. ARK COMPUTER REPAIR’s sole obligation in respect of any Software defect is to liaise with the licensor and report such defect, request a remedy and to provide reasonable assistance in effecting a remedy if required by the licensor.
11.7 ARK COMPUTER REPAIR shall not be liable for any loss, costs, expenses and or damages arising due to or in connection with the denying or withdrawing of any permit or consent in respect of the importing, distribution, reselling or operation of the Equipment or Software.
11.8 ARK COMPUTER REPAIR shall not be liable for any third party claims, damages, charges, costs or expenses arising due to the Customer’s termination of any services provided by a third party or the transfer of any Services to ARK COMPUTER REPAIR.
11.9 The Customer indemnifies and will keep ARK COMPUTER REPAIR fully and effectively indemnified against all and any losses, claims, damages, costs, charges, expenses and other liabilities which ARK COMPUTER REPAIR may sustain or incur or which may be brought or established against it by any person and which in any case arise out of or in relation to or by reason of: (a) any breach by the Customer of its obligations under this Agreement; and/or (b) the negligence of the Customer.
11.10 This clause 11 represents the entire liability of ARK COMPUTER REPAIR under or in connection with this Agreement and shall apply before and/or after any termination of this Agreement.

12. TITLE AND RISK

12.1 Title in all Equipment shall pass to the Customer upon receipt of full payment therefor by ARK COMPUTER REPAIR. Risk in the Equipment shall pass to the Customer on delivery.
12.2 Title in Software and the media in which it is embodied shall not pass to the Customer in any event.

13. FORCE MAJEURE

13.1 ARK COMPUTER REPAIR shall not be responsible for any failure or delay in the performance of its obligations under or in connection with this Agreement due to any force majeure event such as, but not limited to, an Act of God, weather of exceptional severity, refusal of licence (other than as a result of any act or omission of ARK COMPUTER REPAIR) or other Government act or omission, any act or omission of the Highways Authorities or other competent authority, war, military operations, terrorist action, riot, fire, explosion, accident, lightning damage, electromagnetic interference, radio interference, strikes, industrial dispute, lockouts, the act or omission of any party for whom ARK COMPUTER REPAIR is not responsible or any other cause beyond its reasonable control.
13.2 If any period of force majeure subsists for 6 (six) months this Agreement shall automatically terminate unless otherwise agreed by the Parties in writing.

14. ENTIRE AGREEMENT

14.1 This Agreement shall constitute the entire agreement between ARK COMPUTER REPAIR and the Customer in respect of the subject matter hereof and any other terms, conditions, performance criteria, guarantees, trade practise, custom or prior representation shall be of no effect unless expressly incorporated herein.
14.2 ARK COMPUTER REPAIR’s catalogue, pamphlets, general and advertising literature are intended to display the features of the Service(s) and/or Equipment and the information contained in such publications shall not form part of this Agreement.
14.3 Each of the Parties acknowledges that in entering into this Agreement, it has not relied on any express or implied, oral or written representation, collateral contract, warranty or other assurance (except as included in this Agreement) and waives all rights and remedies which might otherwise be available to it in respect thereof, except that nothing in this Agreement will limit or exclude any liability of a party for fraud.

15. SEVERANCE

15.1 In the event that any provision of this Agreement should be held to be invalid or unenforceable by a court or administrative authority of competent jurisdiction: (a) such provision will be replaced with a provision that is not unenforceable or invalid and which, to the fullest extent permissible, gives effect to the intent of the provision that is held unenforceable or invalid; and (b) the remaining provisions of this Agreement shall remain in full force and effect.

16. JURISDICTION, LAW AND DISPUTE RESOLUTION

16.1 This Agreement shall be subject to English Law and subject to the exclusive jurisdiction of the English Courts.
16.2 To the fullest extent permissible or as awarded by a Court, the Party prevailing in any legal proceedings will be entitled to recover from the other Party all costs reasonably and necessarily incurred in such proceedings including reasonable legal and/or expert witness fees.
16.3 The language of all proceedings hereunder shall be English.

17. WAIVER

17.1 Unless expressly agreed between the Parties’ authorised representatives, no admission, act or omission made by either Party shall constitute a waiver or release from any obligation or liability contained herein. Failure by either Party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of any such or other right on any later occasion.

18. THIRD PARTY RIGHTS

18.1 Nothing in this Agreement confers or purports to confer any benefit on any third party or right to enforce any benefit by any third party in accordance with the Contract (Rights of Third Parties) Act 1999.

19. SURVIVAL

19.1 Rights accrued at the date of any termination of this Agreement and rights intended by their nature to survive termination shall survive any such termination of this Agreement.

20. SOCIAL ACCOUNTABILITY

20.1 ARK COMPUTER REPAIR shall inform the Customer, on request, of all materials, substances and compounds by weight and by location in the Equipment and provide the Customer with instructions for disassembly, re-use and end-of-life treatment of the Equipment and with any other information that the Customer may need based on statutory requirements.
20.2 ARK COMPUTER REPAIR is committed to ethical conduct and respect for human rights in the spirit of internationally recognised social and ethical standards, e.g. SA8000. ARK COMPUTER REPAIR may monitor the ethical performance of suppliers and will be responsive where the ethical performance of a supplier is questioned.

21. CONFIDENTIALITY

21.1 The Customer will promptly provide to ARK COMPUTER REPAIR (free of charge) any information which ARK COMPUTER REPAIR may reasonably require to enable it to proceed with the performance of its obligations under this Agreement including any information which ARK COMPUTER REPAIR may reasonably request for the purposes of credit verification and debt collection. The Customer permits ARK COMPUTER REPAIR to use such information and to provide it to third parties acting on behalf of ARK COMPUTER REPAIR for such purposes.
21.2 Save as contemplated by this Agreement, neither the Customer nor ARK COMPUTER REPAIR will use any information of the other which is disclosed or otherwise comes into its possession under or in connection with this Agreement and which is of a confidential nature. This obligation will not apply to information which (i) was already in the recipient’s possession without any restrictions on its disclosure; (ii) is lawfully received from a third party without any restrictions as to disclosure; (iii) is in or comes into the public domain otherwise than through the default or negligence of the recipient; (iv) is independently developed or derived by or for the recipient without reference to the confidential information; or (v) is disclosed or required to be disclosed by law or by order of a court or a competent administrative or regulatory authority.
21.3 Both Parties shall fully comply with data protection laws in force from time to time insofar as they relate to the Agreement and shall procure that their employees shall observe such laws.
21.4 This clause 21 shall remain in effect for 2 (two) years after the termination of this Agreement howsoever arising.

22. TRANSFER OF AGREEMENT

22.1 The Customer shall not assign, novate, transfer, delegate or otherwise deal with any of its rights and obligations under this Agreement without the prior written fully informed consent of ARK COMPUTER REPAIR’S duly authorised representative. ARK COMPUTER REPAIR shall have the right to assign or otherwise delegate all or any of its rights and obligations to any other person upon serving notice on the Customer.

23. NOTICES

23.1 Any notice required or authorised to be given under this Agreement shall be delivered by special delivery (next day delivery) or by hand to the addressees at the following addresses: (a) To ARK COMPUTER REPAIR at the address as shown on the last invoice rendered to the Customer or such other address as ARK COMPUTER REPAIR may nominate for this purpose. (b) To the Customer at the address notified to ARK COMPUTER REPAIR as the address to which notices or invoices may be sent or the Customer’s usual or last known address or its registered office.
23.2 Any notice shall be deemed to have been made to the other Party (i) if delivered by hand, when delivered, (ii) if posted by special delivery post, on being signed for by the addressee. The Customer will retain postal receipts for notice referred to at 23.2(ii) and make them available to ARK COMPUTER REPAIR on request.
23.3 The Parties acknowledge, accept and agree that the postal receipts to be retained at 23.2 above will serve as proof of notice being served in the event of a dispute. In the event that a notice is alleged to have been served by the Customer which is not received or acted on by ARK COMPUTER REPAIR, the Parties hereby agree that if the Customer is unable to provide proof of delivery of such written notice given in accordance with 23.2(ii) above, a notice will not have been served.

24. NO PARTNERSHIP

24.1  Nothing in this Agreement shall create, or be deemed to create, a part­nership between the Parties.

25. MARKETING

25.1 During the term of this Agreement ARK COMPUTER REPAIR may send to the Customer marketing and/or promotional material and/or details of offers and services available from time to time.

26. COPYRIGHT

26.1 Copyright is all documentation produced or supplied by ARK COMPUTER REPAIR rests in ARK COMPUTER REPAIR and/or its licensors and may not be copied, broadcast, adapted or distributed without ARK COMPUTER REPAIR’s fully informed prior written consent.

27. NON-SOLICITATION

27.1 The Customer and ARK COMPUTER REPAIR shall not during the term of the Agreement and for a period of 6 (six) months thereafter solicit or entice away or endeavour to solicit or entice away any employee from the other.

28. SET-OFF

28.1 The Customer shall not be entitled by reason of any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to ARK COMPUTER REPAIR.

29. VARIATION

29.1 Save as set out below, no variation in the provisions of the Agreement shall be of any effect unless made in writing and signed on behalf of the Customer and ARK COMPUTER REPAIR.
29.2 Notwithstanding the above or any other provision of this Agreement, ARK COMPUTER REPAIR may amend the terms of this Agreement at any time by notice in writing to the Customer in the event that (i) a change is necessary to comply with any rule, regulation, directive or statutory change imposed by a competent administrative authority; or (ii) an equivalent change is imposed upon ARK COMPUTER REPAIR by its suppliers, licensors and/or sub-contractors. The change will take effect on the date set out in the notice. ARK COMPUTER REPAIR reserves the right to may make reasonable operational changes to the Services without prior notice when necessary.

1.TECHNICAL HELP DESK SUPPORT

1.1 ARK COMPUTER REPAIR will provide technical advice and remote support to the Customer for Equipment, Software and any item specified in the Customer’s order whilst all reasonable endeavours shall be made by the Service Provider to support the Customer equipment and software, no guarantee is given that the Service Provider is able to solve any particular problems.
1.2 Where the Customer is using untested systems or combinations of products, any advice given regarding compatibility between Equipment and Software does not constitute a guarantee of performance of any system or combination of products.
1.3 Where the Customer is using non-standard Equipment and/or unreleased beta Software ARK COMPUTER REPAIR will charge to advise, investigate or rectify any issues that arise.

2. TECHNICAL ON-SITE SUPPORT

2.1 Onsite support is not included in this Agreement. All Customer site visits will be charged at ARK COMPUTER REPAIR’s standard rate set out in the then Current Price List. Each site visit will require Customer’s written or emailed consent before an engineer visit is scheduled.

3. TRAINING

3.1 At the commencement of the service the Customer will receive a one hour handover meeting. Any additional training required by the Customer will be charged for at the rate specified in the Customer’s order.

4. OTHER SERVICES

4.1 Call management centre during Normal Support Hours
4.1.1 Agreed allocation of support time as per the schedule for all queries
4.1.2 Support provided through our dedicated support number
4.2 Service Level Agreement as selected by customer
4.3 Monthly report of network health
4.4 All items will be remotely managed by ARK COMPUTER REPAIR.
4.4.1 ARK Assist Monitoring server schedule: Weekly updating of all latest Microsoft updates, Weekly reboot of system and disk check, Continuous 4 hourly update of AV product, Daily Low disk space monitoring, Monitoring of event viewer / fix of critical errors, Automated restart of critical services, Daily backup monitoring, Weekly virus report check, Server core operating system monitoring and Hardware monitoring 
4.4.2 ARK Assist Monitoring workstation schedule: Daily updating of all latest Microsoft updates, Continuous 1 hourly update of AV product and Workstation health management
4.5 ARK COMPUTER REPAIR will endeavour to attend all call outs within 24 hours of the call being placed and, where possible, the repair will be carried out onsite. Where onsite repairs are not possible, the item of Equipment will be removed to ARK COMPUTER REPAIR’S repair facility.

5. SERVICE IMPROVEMENT PLAN

5.1 ARK COMPUTER REPAIR and the Customer shall discuss any required service improvement plans in good faith and subject to agreement on a service improvement plan shall perform their respective obligations under the same in a diligent and timely manner.

6. AVAILABILITY OF TECHNICAL ONSITE SUPPORT AND SERVICE WORK

6.1 ARK COMPUTER REPAIR shall use its reasonable endeavours to respond to support requests as follows:
6.1.1 Call outs within 24 hours. Due to the nature of the service, and ever-changing schedules, no timed appointments can be offered.
6.1.2 Limited availability during Christmas holiday periods.

7. CUSTOMER OBLIGATIONS

7.1  The Customer will ensure that all Software and licenses are available for immediate use by ARK COMPUTER REPAIR. In some cases, ARK COMPUTER REPAIR, with the Customer’s consent, may keep backup copies of Software in use by the Customer.
7.2 Any commercially sensitive information or data that needs to be supplied to ARK COMPUTER REPAIR, such as passwords or working data will be treated as confidential and will not be disclosed to third parties. Data will be kept in accordance with the Data Protection Act 1998.
7.3 It is the Customer’s responsibility to ensure that it has sufficient licenses for the required number of users for any Software in use. ARK COMPUTER REPAIR may identify issues to the Customer which indicate that additional licenses are required, but ARK COMPUTER REPAIR assumes no responsibility for doing so.
7.4 By reinstalling the Customer’s software on either the Customer’s original computers or new computers, ARK COMPUTER REPAIR does not assume any responsibility for ensuring that the Customer has sufficient licenses for the installation.
7.5 All Customer equipment and software media is left at ARK COMPUTER REPAIR’S premises at the Customer’s own risk and ARK COMPUTER REPAIR is not responsible for the loss or damage to any item.
7.6 The Customer shall inform ARK COMPUTER REPAIR of any actual or intended changes by either the Customer or any third party to the configuration of all serviced computers. ARK COMPUTER REPAIR agrees to co-operate with the implementation of all such changes.

8. CHARGEABLE SERVICES AND EXCLUSIONS

8.1 The following are not included in the Agreement and will therefore be charged at ARK COMPUTER REPAIR’S standard rate for engineering services as set out in ARK COMPUTER REPAIR’s then Current Price List:
8.1.1 Provision and installation of new software and hardware.
8.1.2 Connectivity of equipment to the Customer’s domain.
8.1.3 Upgrades to existing supported Equipment including Software.
8.1.4 Installation of Equipment and third-party software installation.
8.1.5 The cost of incident charges levied by manufacturers or other suppliers of either Equipment or Software, where manufacturers or suppliers (e.g. Microsoft, which does not offer free technical support) charge ARK COMPUTER REPAIR on a per incident basis. ARK COMPUTER REPAIR will conduct the dialogue with such parties, but the incident charges will be payable by the Customer.
8.1.6 Should a problem require referral to such a party the Customer will be advised prior to referral and advised of likely costs.
8.1.7 The cost of replacing consumables including replacement backup batteries, leads, cables, ink and toner cartridges, laser drums, fuses and developers.
8.1.8 The cost of recovering data from faulty hard disks.
8.1.9 The consequential losses, financial or otherwise, caused by System down time or System malfunction. 8.1.10 Support for specialist, industry specific software unless listed in the Customer’s order.
8.1.11 Where Equipment is damaged through accident or misuse, a charge will be made for the repair.
8.1.12 The cost of reconfiguring Software or operating systems after the Customer has performed an unauthorised installation or configuration of software.
8.1.13 Where unauthorised configuration has taken place on Equipment or Software, and functionality has been adversely affected, ARK COMPUTER REPAIR reserves the right to cease support for that item for the remaining period of the Agreement without credit. If the removed item is a central network resource, then support for any of the related network functionality will also be withdrawn.
8.1.14 The cost of call outs to disinfect computers or servers from viruses and malware.
8.1.15 Server failure due to low disk space or component/Software failure.
8.1.16 Where software is found to be unlicensed, support for that software may be withdrawn.
8.1.17 Whilst all reasonable endeavours will be made by ARK COMPUTER REPAIR to support the Customer’s equipment and software, no guarantee is given that ARK COMPUTER REPAIR is able to solve any problems. 8.1.18 Where the customer is using untested systems or combinations of products, any advice given regarding compatibility between hardware and software does not constitute a guarantee of performance of any system or combination of products.
8.1.19 Where the Customer is using non-standard hardware and/or unreleased beta software ARK COMPUTER REPAIR will charge to advise, investigate or rectify any issues that arise.
8.1.20 Any charges for remedial work will be agreed prior to any works being carried out and invoiced the following completion.
8.1.21 Unless previously agreed ARK COMPUTER REPAIR will not be liable for resolving problems which are known to have existed prior to the Effective Date. 

1. DEFINITIONS AND INTERPRETATIONS

“Component” means a component element of the Equipment.
“Fair Wear & Tear” is the ordinary use of the Equipment in accordance with its Specifications and any instructions issued by ARK COMPUTER REPAIR or the manufacturer. For the avoidance of any doubt, Fair Wear & Tear is NOT damage, defects or faults arising due to: · Accidents; · Use outside of the Equipment’s normal operational limits; · Continued use of Equipment or a Component that is in need of repair; · Contamination, submergence, ingress or impact; · Storage outside the Equipment’s specified parameters; · Solar and/or particle radiation; · Electrostatic, electrical and magnetic stress; · Incorrect fitment of accessories or Components other than by or on behalf of ARK COMPUTER REPAIR; · Unauthorised or improper repair, configuration, programming; · Continued use of Equipment or a Component requiring an essential hardware or software update.
“Services” as used in this Appendix means the installation of Equipment at the Customer’s premises and/or the provision of warranty services, as the context permits.
“Working Hours” means from 0900hrs to 1730hrs on a weekday that is not a bank or public holiday in England.

2. CONTRACT

2.1 Subject to this terms and conditions contained in this Agreement, ARK COMPUTER REPAIR hereby agrees to supply the Customer with Equipment in accordance with the Specification and the Order and the Customer agrees to pay the Price in accordance with the Order and as provided for in this Agreement.
2.2 Subject to the terms and conditions contained in this Agreement, ARK COMPUTER REPAIR hereby agrees to perform the Services in accordance with their Specification and Lead Time.

3. SERVICES WARRANTY

3.1 Services will be performed during Working Hours. ARK COMPUTER REPAIR warrants that it will exercise the skill, care and judgement commensurate with a professional experienced in the provision of Services and in the fulfilment of its obligations hereunder and will perform the Services in accordance with good industry practice.

4. EQUIPMENT WARRANTY

4.1 Equipment excluding batteries, other consumables and Software shall be warranted free from defects due to faulty design, workmanship or materials for a period of 12 (twelve) months from the later of the date of supply by ARK COMPUTER REPAIR or the date on which installation Services are completed by ARK COMPUTER REPAIR. ARK COMPUTER REPAIR shall at its option repair or replace Equipment or any Component that is found to be defective in its warranty period. The Customer shall comply with any reasonable instruction given by ARK COMPUTER REPAIR in carrying out its obligations. If it is agreed in advance that the Customer will carry out any necessary repair then such costs as are incurred by the Customer and agreed in advance by ARK COMPUTER REPAIR will be reimbursed by ARK COMPUTER REPAIR.
4.2 The warranty shall not apply where a fault, defect or damage arises to the Equipment due to other than Fair Wear & Tear.
4.3 Software is not warranted to be error free, but is warranted to perform substantially in accordance with its Specifications for a period of 90 (ninety) days from the later of supply by ARK COMPUTER REPAIR or completion of the installation Services by ARK COMPUTER REPAIR. In the case of defects in Software supplied by ARK COMPUTER REPAIR arising during the Software warranty period, ARK COMPUTER REPAIR shall liaise with the manufacturer and shall use reasonable commercial efforts to ensure that the manufacturer corrects such defects within a reasonable period of time or replaces the Software, at the manufacturer’s option. The Customer shall provide ARK COMPUTER REPAIR with any assistance it may reasonably require in reporting Software defects. Defect correction shall be limited to those Software defects that materially affect performance of the Equipment.
4.4 The Customer shall not rely upon any warranty (other than those stated in this Appendix or technical statements concerning the Equipment, Components and/or Software which is to be supplied by ARK COMPUTER REPAIR under this Agreement except where such statements have been confirmed in writing and signed by a duly authorised officer of ARK COMPUTER REPAIR and expressly incorporated herein.
4.5 The warranties set out in this Agreement exclude and shall be in lieu of all other conditions and warranties express, implied, statutory or otherwise in respect of the Products.
4.6 Notwithstanding any other term or condition of this Agreement, the provision by ARK COMPUTER REPAIR of the remedies specified in this Appendix shall be the Customer’s sole and entire remedy in respect of the said non-conformity or defects in Equipment.

5. PAYMENT & INSURANCE

5.1 Payment for all Equipment and/or Services is due as follows where the Customer is funding the purchase: 5.1.1 The Customer may be asked to pay up to 50% (twenty percent) of the Price due hereunder with the Order as a deposit. The Customer hereby acknowledges that in reliance on the Order ARK COMPUTER REPAIR shall place complementary orders on its suppliers and incur costs. As such, the deposit is non-refundable in the event of cancellation of the order for any reason other than as a result of ARK COMPUTER REPAIR’s default; and 5.1.2 The Customer shall pay the remainder of the Price due hereunder on delivery of the Equipment to the Customer’s premises.
5.2 Payment for all Equipment and/or Services is due as follows where funded by a third party leasing company: 5.2.1 On delivery of the Equipment to the Customer’s premises, the Customer shall sign a Certificate of Acceptance (“COA”) and return it to ARK COMPUTER REPAIR within 24 hours of delivery of the Equipment. ARK COMPUTER REPAIR will forward a signed copy of the COA to the third party leasing company which will release payment to ARK COMPUTER REPAIR.
5.2.2 The Customer hereby confirms that it will not use any Equipment prior to signing the COA, other than to conduct reasonable tests to evidence the Equipment’s performance.
5.2.3 In the event the Customer uses Equipment prior to signing the COA, the Customer irrevocably consents to ARK COMPUTER REPAIR signing the COA on its behalf and the Customer hereby confirms that it will have accepted the Equipment by conduct.
5.2.4 Where the third party leasing company refuses to accept a COA signed by ARK COMPUTER REPAIR in accordance with 4(b)(iii) above and without prejudice to clause 5(d) of this Appendix, the full value of the Equipment will be immediately recoverable from the Customer as a debt.
5.3 Until payment for the Equipment is received by ARK COMPUTER REPAIR, the Customer shall, at its expense, insure the same with a reputable insurance company on an all risks basis for its full replacement value, and shall ensure that ARK COMPUTER REPAIR is named on the insurance policy.
5.4 ARK COMPUTER REPAIR may request the Customer to provide it with certificates of insurance. Certificates shall be provided within 5 (five) Working Days of such request. Failure to provide such certificates may be taken by ARK COMPUTER REPAIR to indicate that the Customer has failed to meet its obligations to provide the insurance cover required under this Appendix. The Customer shall, if requested, also provide ARK COMPUTER REPAIR with updated certificates on the renewal anniversaries of any policies required under this Appendix.

6. SUPPLY OF EQUIPMENT VIA A FINANCE COMPANY

6.1 The Parties acknowledge that where Equipment and/or Services are supplied by ARK COMPUTER REPAIR to the Customer via a finance company, the terms and conditions of supply are exclusively governed by (i) the contract between ARK COMPUTER REPAIR and the finance company; and (ii) the contract between the Customer and the finance company.
6.2 For supply in accordance with this Appendix, the Order sets out Equipment and/or Services that ARK COMPUTER REPAIR will supply to the finance company for the benefit of the Customer, subject to acceptance of the Order by the finance company.
6.3 The Customer acknowledges that subject to this clause (b), the Price, the Charges and any Settlement Charge, in each case as set out in the Order, will be paid by the finance company to ARK COMPUTER REPAIR.

1. USE OF SIM CARDS

1.1 Where we supply you with the Mobile Telephony Service and you are not already our customer, we will supply you with such number of SIM Cards as is necessary for you to receive the Mobile Telephony Service pursuant to the relevant Sales Order. Title to the SIM Cards shall remain with us.
1.2 Any attempt to use a SIM Card in other equipment that is not Equipment for the purposes of the Services or otherwise approved by us may result in serious damage to the equipment and may prevent you from being able to use it, including the making of emergency Calls. In these instances, neither we nor any Service Provider or Network Operator shall be responsible for any such damage or usage problems. In addition, you agree not to establish, install or use a SIM Card or any Equipment as, or in connection with, a GSM Gateway without our prior written consent (including devices tethered via cable, Bluetooth or Wi-Fi, to a computer or the internet, when used for making large volumes of calls, using large volumes of data or sending large volumes of texts). We can withhold our consent for this activity at our sole and absolute discretion.
1.3 We will provide to you such mobile numbers as are necessary for you to receive the Mobile Telephony Service, or (where feasible) use reasonable endeavours to facilitate the porting of mobile numbers from another Mobile Telecommunications Network in accordance with standard porting procedures between Mobile Telecommunications Networks in the United Kingdom. Nothing in this Agreement shall be construed as granting to you any right in relation to the mobile numbers other than to receive the Mobile Telephony Service as described in this Agreement.

2. DISCONNECTION OF SIM CARDS

2.1 You may give us notice in writing that you wish us to disconnect a SIM Card at any time. Within 30 days from receipt of such notice, we will disconnect the relevant SIM Card from the Mobile Telephony Service.
2.2 In the event that you give us a disconnection notice resulting in disconnection of a SIM Card pursuant to Part C paragraph 2.1 prior to the expiry of the Minimum Period or a Subsequent Period (as the case may be), you agree to pay to us any applicable Termination Fee.

3. SERVICES AND COVERAGE

3.1 Where possible, we will use reasonable endeavours to facilitate your access to overseas Mobile Telecommunications Networks. You agree that we are not responsible for the performance of any Mobile Telecommunications Networks that are not controlled by us (including those within the United Kingdom). Overseas Mobile Telecommunications Networks may be limited in quality and coverage, and you acknowledge that access, service availability and security depends on various factors outside of our control.
3.2 You will be able to upload and send your own content using the Mobile Telephony Service. You grant to us, any Service Provider and any Network Operator a royalty-free, perpetual and worldwide licence to store, transmit or otherwise deal with any content so uploaded.
3.3 Where you opt in to any international roaming services provided as part of the Mobile Telephony Service, you accept that you are agreeing to opt out of any automatic barring (including any European regulatory barring) and agree to pay for all roamed usage in addition to all other Charges and bundles for which you are liable.

4. SECURING YOUR PIN, PASSWORDS AND SIM CARD

4.1 You will ensure that you keep all SIM Cards supplied to you safe and secure whilst in your possession and you must ensure that you are able to return them to us immediately on request. There will be a charge for any replacement SIM Card supplied to you save only where the original SIM Card is assessed by us as being defective.
4.2 You agree to immediately change your PIN or password if you become aware that someone is accessing Services on your account without your permission.

5. AGE RESTRICTED SERVICES

5.1 If any End User is under 18, they are not permitted to access Age Restricted Services (if any) and you will ensure that you have deactivated any access to Age Restricted Services if you let anyone under 18 use the Equipment. If an End User is 18 or over and accesses the Age Restricted Services, they must not show or send content from the Age Restricted Services to anyone under 18. You agree to procure that all End Users comply with this clause.

6. RESPONSIBLE USE OF SERVICES OUTSIDE THE UK

6.1 If you use Services from or in a country outside the UK, your use of the Services may be subject to laws and regulations that apply in that other country. You are solely responsible for compliance with all such foreign laws and regulations and we shall have no liability whatsoever for your failure to comply with such foreign laws or regulations.

7. PORTING TO ANOTHER PROVIDER

7.1 If we receive a request to port a mobile telephone number to another provider, we will use reasonable endeavours to facilitate the provision of a porting authorisation code (“PAC”) to you in accordance with current regulatory guidelines. We will charge you an administration fee per number to cover the cost of removing your number from the Mobile Telephony Service, as published in the Price List from time to time.
7.2 If you port a number away from us then in addition to the administration fee referred to in Part C paragraph 7.1, you will still be liable for any outstanding Charges due to us pursuant to this Agreement, including any Termination Fees.

This Microsoft Customer Agreement (the “Agreement”) is between Customer and Microsoft and consists of these General Terms, the applicable Use Rights and SLAs, and any additional terms Microsoft presents when an order is placed. This Agreement takes effect when the Customer accepts these General Terms. The individual who accepts these General Terms represents that he or she is authorized to enter into this Agreement on behalf of the Customer.

General Terms

These General Terms apply to all of Customer’s orders under this Agreement. Capitalized terms have the meanings given under “Definitions.”

License to use Microsoft Products

a. License grant. Products are licensed and not sold. Upon Microsoft’s acceptance of each order and subject to Customer’s compliance with this Agreement, Microsoft grants Customer a nonexclusive and limited license to use the Products ordered as provided in the applicable Use Rights and this Agreement. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.

b. Duration of licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period unless renewed. Licenses granted for metered Products billed periodically based on usage continue as long as Customer continues to pay for its usage of the Product. All other licenses become perpetual upon payment in full.

c. Applicable Use Rights. For perpetual licenses, the Use Rights in effect when Customer orders a Product will apply. For subscriptions, the Use Rights in effect at the start of each subscription period will apply. Customers with subscriptions for Software may use new versions released during the subscription period subject to the Use Rights in effect when those versions are released. For metered Products billed periodically based on usage, the Use Rights in effect at the start of each billing period will apply during that period. Microsoft may update the Use Rights periodically, but material adverse changes for a particular version will not apply during the applicable license, subscription, or billing period.

d. End Users. Customer will control access to and use of the Products by End Users and is responsible for any use of the Products that does not comply with this Agreement.

e. Affiliates. Customer may order Products for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Microsoft. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement.

f. Reservation of Rights. Microsoft reserves all rights not expressly granted in this Agreement. Products are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use a Product on a device do not give Customer any right to implement Microsoft patents or other Microsoft intellectual property in the device itself or in any other software or devices.

g. Restrictions. Except as expressly permitted in this Agreement or Product documentation, Customer must not (and is not licensed to):

(1) reverse engineer, decompile, or disassemble any Product, or attempt to do so;

(2) install or use non-Microsoft software or technology in any way that would subject Microsoft’s intellectual property or technology to any other license terms;

(3) work around any technical limitations in a Product or restrictions in Product documentation;

(4) separate and run parts of a Product on more than one device;

(5) upgrade or downgrade parts of a Product at different times;

(6) transfer parts of a Product separately; or

(7) distribute, sublicense, rent, lease, or lend any Products, in whole or in part, or use them to offer hosting services to a third party.

h. License transfers. Customer may only transfer fully-paid, perpetual licenses under this Agreement to (1) an Affiliate or (2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (a) a divestiture of all or part of an Affiliate or (b) a merger involving Customer or an Affiliate. Upon such transfer, Customer must uninstall and discontinue using the licensed Product and render any copies unusable. Customer must notify Microsoft of a license transfer and provide the transferee a copy of these General Terms, the applicable Use Rights and any other documents necessary to show the scope, purpose and limitations of the licenses transferred. Nothing in this Agreement prohibits the transfer of Software to the extent allowed under applicable law if the distribution right has been exhausted.

i. Customer Eligibility. Customer agrees that if it is purchasing academic, government or nonprofit offers, Customer meets the respective eligibility requirements (https://aka.ms/eligiblitydefinition). Microsoft reserves the right to verify eligibility and suspend product use if requirements are not met.

Non-Microsoft Products.

Non-Microsoft Products are provided under separate terms by the Publishers of such products. Customer will have an opportunity to review those terms prior to placing an order for a Non-Microsoft Product through a Microsoft online store or Online Service. Microsoft is not a party to the terms between Customer and the Publisher. Microsoft may provide Customer’s contact information and transaction details to the Publisher. Microsoft makes no warranties and assumes no responsibility or liability whatsoever for Non-Microsoft Products. Customer is solely responsible for its use of any Non-Microsoft Product.

Verifying compliance.

Customer must keep records relating to Products it and its Affiliates use or distribute. At Microsoft’s expense, Microsoft may verify Customer’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, Microsoft may engage an independent auditor (under nondisclosure obligations) or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Microsoft or the auditor reasonably requests related to the verification and access to systems running the Products. If verification or self-audit reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Microsoft’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Products, Customer must reimburse Microsoft for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.

Privacy.

a. Personal Data. Customer consents to the processing of Personal Data by Microsoft and its Affiliates, and their respective agents and subcontractors, as provided in this Agreement. Before providing Personal Data to Microsoft, Customer will obtain all required consents from third parties (including

Customer’s contacts, Partners, distributors, administrators, and employees) under applicable privacy and data protection laws.

b. Location of Personal Data. To the extent permitted by applicable law, Personal Data collected under this Agreement may be transferred, stored and processed in the United States or any other country in which Microsoft or its Affiliates, or their respective agents and subcontractors, maintain facilities. Microsoft will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland.

Confidentiality.

a. Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.

b. Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party. The Online Services Terms may provide additional terms regarding the disclosure and use of Customer Data.

c. Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.

d. Residual information. Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.

e. Duration of Confidentiality obligation. These obligations apply (1) for Customer Data, until it is deleted from the Online Services; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.

Product warranties.

a. Limited warranties and remedies.

(1) Online Services. Microsoft warrants that each Online Service will perform in accordance with the applicable SLA during Customer’s use. Customer’s remedies for breach of this warranty are described in the SLA.

(2) Software. Microsoft warrants that the Software version that is current at the time will perform substantially as described in the applicable Product documentation for one year from the date Customer acquires a license for that version. If it does not, and Customer notifies Microsoft withinthe warranty term, Microsoft will, at its option, (a) return the price Customer paid for the Software license or (b) repair or replace the Software.

The remedies above are Customer’s sole remedies for breach of the warranties in this section. Customer waives any warranty claims not made during the warranty period.

b. Exclusions. The warranties in this Agreement do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement, including failure to meet minimum system requirements. These warranties do not apply to free, trial, preview, or prerelease products, or to components of Products that Customer is permitted to redistribute.

c. Disclaimer. Except for the limited warranties above and subject to applicable law, Microsoft provides no other warranties or conditions for Products and disclaims any other express, implied or statutory warranties for Products, including warranties of quality, title, non-infringement, merchantability, and fitness for a particular purpose.

Defense of third-party claims.

The parties will defend each other against the third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This section describes the parties’ sole remedies and entire liability for such claims.

a. By Microsoft. Microsoft will defend Customer against any third-party claim to the extent it alleges that a Product made available by Microsoft for a fee and used within the scope of the license granted under this Agreement (unmodified from the form provided by Microsoft and not combined with anything else), misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party. If Microsoft is unable to resolve a claim of misappropriation or infringement, it may, at its option, either (1) modify or replace the Product with a functional equivalent or (2) terminate Customer’s license and refund any license fees (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption for any usage period after the termination date. Microsoft will not be liable for any claims or damages due to Customer’s continued use of a Product after being notified to stop due to a third-party claim.

b. By Customer. To the extent permitted by applicable law, Customer will defend Microsoft and its Affiliates against any third-party claim to the extent it alleges that: (1) any Customer Data or Non-Microsoft Product hosted in an Online Service by Microsoft on Customer’s behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (2) Customer’s use of any Product, alone or in combination with anything else, violates the law or harms a third party.

Limitation of liability.

For each Product, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Products during the term of the applicable licenses, subject to the following:

a. Subscriptions. For Products ordered on a subscription basis, Microsoft’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Product during the 12 months before the incident.

b. Free Products and distributable code. For Products provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft’s liability is limited to direct damages finally awarded up to US$5,000.

c. Exclusions. In no event will either party be liable for loss of revenue or loss of anticipated savings (in either case whether direct or indirect), indirect, incidental, special, punitive, or consequential damages, loss of use, loss of business information, or interruption of business, however caused or on any theory of liability.

d. Exceptions. No limitation or exclusions will apply to liability arising out of either party’s (1) confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the other party’s intellectual property rights.

Liability for death or personal injury. In any case where the law of England and Wales applies per the terms of the Agreement or the determination of a court, nothing in this Agreement shall exclude liability for death or personal injury caused by negligence or liability for fraudulent misrepresentation

Partners.

a. Selecting a Partner. Customer may authorize a Partner to place orders on Customer’s behalf and manage Customer’s purchases by associating the Partner with its account. If the Partner’s distribution right is terminated, Customer must select an authorized replacement Partner or purchase directly from Microsoft. Partners and other third parties are not agents of Microsoft and are not authorized to enter into any agreement with Customer on behalf of Microsoft.

b. Partner Administrator privileges and access to Customer Data. If Customer purchases Online Services from a Partner or chooses to provide a Partner with administrator privileges, that Partner will be the primary administrator of the Online Services and will have administrative privileges and access to Customer Data and Administrator Data. Customer consents to Microsoft and its Affiliates providing the Partner with Customer Data and Administrator Data for purposes of provisioning, administering and supporting (as applicable) the Online Services. Partner may process such data according to the terms of Partner’s agreement with Customer, and its privacy commitments may differ from Microsoft’s. Customer appoints Partner as its agent for purposes of providing and receiving notices and other communications to and from Microsoft. Customer may terminate the Partner’s administrative privileges at any time.

c. Support and Professional Services. Customer’s Partner will provide details on support services available for Products purchased under this agreement. Support services may be performed by Partner or its designee, which in some cases may be Microsoft. If Customer purchases Professional Services under this agreement, the performance of those Professional Services will be subject to the terms and conditions in the Use Rights.

Pricing and payment.

If Customer orders from a Partner, the Partner will set Customer’s pricing and payment terms for that order, and Customer will pay the amount due to the Partner. Pricing and payment terms related to orders placed by Customer directly with Microsoft are set by Microsoft, and Customer will pay the amount due as described in this section.

a. Payment method. Customer must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. By providing Microsoft with a payment method, Customer (1) consents to Microsoft’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network; (2) represents that it is authorized to use that payment method and that any payment information it provides is true and accurate; (3) represents that the payment method was established and is used primarily for commercial purposes and not for personal, family or household use; and (4) authorizes Microsoft to charge Customer using that payment method for orders under this Agreement.

b. Invoices. Microsoft may invoice eligible Customers. Customer’s ability to elect payment by invoice is subject to Microsoft’s approval of Customer’s financial condition. Customer authorizes Microsoft to obtain information about Customer’s financial condition, which may include credit reports, to assess Customer’s eligibility for invoicing. Unless the Customer’s financial statements are publicly available, Customer may be required to provide their balance sheet, profit and loss and cash flow statements to Microsoft. Customer may be required to provide security in a form acceptable to Microsoft to be eligible for invoicing. Microsoft may withdraw Customer’s eligibility at any time and for any reason. Customer must promptly notify Microsoft of any changes in its company name or location and of any significant changes in the ownership, structure, or operational activities of the organization.

c. Invoice Payment terms. Each invoice will identify the amounts payable by Customer to Microsoft for the period corresponding to the invoice. Customer will pay all amounts due within thirty (30) calendar days following the invoice date.

d. Late Payment. Microsoft may, at its option, assess a late fee on any payments to Microsoft that are more than fifteen (15) calendar days past due at a rate of two percent (2%) of the total amount payable, calculated and payable monthly, or the highest amount allowed by law, if less.

e. Cancellation fee. If a subscription permits early termination and Customer cancels the subscription before the end of the subscription or billing period, Customer may be charged a cancellation fee.

f. Recurring Payments. For subscriptions that renew automatically, Customer authorizes Microsoft to charge Customer’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Customer authorizes Microsoft to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Microsoft or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Customer for the amount due.

g. Taxes. Microsoft prices exclude applicable taxes unless identified as tax inclusive. If any amounts are to be paid to Microsoft, Customer shall also pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges, or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and that Microsoft is permitted to collect from Customer. Customer shall be responsible for any applicable stamp taxes and for all other taxes that it is legally obligated to pay including any taxes that arise on the distribution or provision of Products by Customer to its Affiliates. Microsoft shall be responsible for all taxes based upon its net income, gross receipts taxes imposed in lieu of taxes on income or profits, and taxes on its property ownership.

If any taxes are required to be withheld on payments invoiced by Microsoft, Customer may deduct such taxes from the amount owed and pay them to the appropriate taxing authority, but only if Customer promptly provides Microsoft an official receipt for those withholdings and other documents reasonably requested to allow Microsoft to claim a foreign tax credit or refund. Customer will ensure that any taxes withheld are minimized to the extent possible under applicable law.

Term and termination.

a. Term. This Agreement is effective until terminated by a party, as described below.

b. Termination without cause. Either party may terminate this Agreement without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement.

c. Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement on 30 days’ notice for material breach if the other party fails to cure the breach within the 30-day notice period. Upon such termination, the following will apply:

(1) All licenses granted under this Agreement will terminate immediately except for fully-paid, perpetual licenses.

(2) All amounts due under any unpaid invoices shall become due and payable immediately. For metered Products billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.

(3) If Microsoft is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.

d. Suspension. Microsoft may suspend use of an Online Service without terminating this Agreement during any period of material breach. Microsoft will give Customer notice before suspending an Online Service when reasonable.

e. Termination for regulatory reasons. Microsoft may modify, discontinue, or terminate a Product in any country or jurisdiction where there is any current or future government regulation, obligation, or other requirement, that (1) is not generally applicable to businesses operating there; (2) presents a hardship for Microsoft to continue offering the Product without modification; or (3) causes Microsoft to believe these terms or the Product may conflict with any such regulation, obligation, or requirement. If Microsoft terminates a subscription for regulatory reasons, Customer will receive, as its sole remedy, a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.

Miscellaneous.

a. Independent contractors. The parties are independent contractors. Customer and Microsoft each may develop products independently without using the other’s Confidential Information.

b. Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the products and services of others.

c. Amendments. Microsoft may modify this Agreement from time to time. Changes to the Use Rights will apply as provided in this Agreement. Changes to other terms will not apply until Customer accepts them. Microsoft may require Customer to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.

d. Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Microsoft may have under this Agreement to receive payment and enforce Customer’s payment obligations, and all assignees may further assign such rights without further consent. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.

e. U.S. export. Products are subject to U.S. export jurisdiction. Customer must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by U.S. and other governments related to Microsoft products, services, and technologies.

f. Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.

g. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

h. No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.

i. Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.

j. Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Microsoft must be sent to the following address:

Microsoft Ireland Operations Limited
One Microsoft Place
South County Business Park
Leopardstown
Dublin 18, Ireland

Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Microsoft may send notices and other information to Customer by email or other electronic form.

k. Applicable law. This Agreement will be governed by and construed in accordance with the laws of Ireland. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.

l. Dispute resolution. When bringing any action arising under this Agreement, the parties agree to the following exclusive venues:

(1) If Microsoft brings the action, the venue will be where Customer has its headquarters.

(2) If Customer brings the action against Microsoft or any Microsoft Affiliate located outside of Europe, the venue will be the state or federal courts in King County, State of Washington, USA.

(3) If Customer brings the action against Microsoft or any Microsoft Affiliate located in Europe, and not also against Microsoft or a Microsoft Affiliate located outside of Europe, the venue will be the Republic of Ireland.

The parties consent to personal jurisdiction in the agreed venue. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations.

m. Order of precedence. These General Terms will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents, except that conflicting terms in the Use Rights take precedence over these General Terms as to the applicable Products. Terms in the Online Services Terms take precedence over conflicting terms in the Product Terms. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.

n. Microsoft Affiliates and contractors. Microsoft may perform its obligations under this Agreement through its Affiliates and use contractors to provide certain services. Microsoft remains responsible for their performance.

o. Government procurement rules. By accepting this agreement, Customer represents and warrants that (i) it has complied and will comply with all applicable government procurement laws and regulations; (ii) it is authorized to enter into this Agreement; and (iii) this Agreement satisfies all applicable procurement requirements.

Definitions.

“Administrator Data” means the information provided to Microsoft or its Affiliates during sign-up, purchase, or administration of Products.

“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party. “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.

“Confidential Information” is defined in the “Confidentiality” section.

“Customer” means the entity identified as such on the account associated with this Agreement.

“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Microsoft or its Affiliates by, or on behalf of, Customer and its Affiliates through use of Online Services.

“End User” means any person Customer permits to use a Product or access Customer Data. “Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site.

“Microsoft” means Microsoft Ireland Operations Limited.

“Non-Microsoft Product” means any third-party-branded software, data, service, website or product, unless incorporated by Microsoft in a Product.

“Online Services” means Microsoft-hosted services to which Customer subscribes under this Agreement. It does not include software and services provided under separate license terms.

“Online Services Terms” means the additional terms that apply to Customer’s use of Online Services published on the Licensing Site and updated from time to time.

“Partner” means a company Microsoft has authorized to distribute Products to Customer.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Product” means all Software and Online Services identified in the Product Terms that Microsoft offers under this Agreement, including previews, prerelease versions, updates, patches and bug fixes from Microsoft. Product availability may vary by region. “Product” does not include Non-Microsoft Products.

“Product Terms” means the document that provides information about Products available under this Agreement. The Product Terms document is published on the Licensing Site and is updated from time to time.

“Publisher” means a provider of a Non-Microsoft Product.

“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.

“SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services and is published on the Licensing Site.

“Software” means licensed copies of Microsoft software identified in the Product Terms. Software does not include Online Services, but Software may be part of an Online Service.

“use” means to copy, download, install, run, access, display, use or otherwise interact with.

“Use Rights” means the license terms and terms of service for each Product published on the Licensing Site and updated from time to time. The Use Rights supersede the terms of any end user license agreement that

accompanies a Product. License terms for all Products are published in the Product Terms. Terms of service for Online Services are published in the Online Services Terms.

Purchase Agreement with the “Microsoft Sales Affiliate” ( ARK Computer Repair)

Certain Products are offered by a local Microsoft Sales Affiliate that Microsoft has authorized to distribute such Products. If a Customer orders those Products directly from Microsoft, the Microsoft Sales Affiliate will be the seller. By submitting the order, Customer is deemed to have accepted the terms offered by the Microsoft Sales Affiliate named above, forming a separate agreement with such Microsoft Sales Affiliate to purchase the Products (the “Purchase Agreement”). The Purchase Agreement consists of all applicable terms of this Agreement, modified as follows:

a. Licensing terms excluded. All terms pertaining solely to licensing and support of such Products are deemed excluded. Microsoft is the licensor of all Products, and the Agreement with Microsoft will continue to apply to any Products ordered from a Microsoft Sales Affiliate. Microsoft Sales Affiliate does not have authority to bind or impose any obligation or liability on any other Microsoft entity.

b. Pricing and payment. Microsoft Sales Affiliate will determine pricing for the applicable Products. All terms pertaining to pricing and payment apply to the Purchase Agreement. If Customer is eligible for invoicing, Microsoft Sales Affiliate will send invoices to the billing contact identified on Customer’s account (with taxes added where applicable), and Customer must pay the amount due to Microsoft Sales Affiliate according to the payment instructions on the invoice. Customer’s failure to make any payment due to Microsoft Sales Affiliate by the required date will constitute a material breach of both the Purchase Agreement and the Agreement with Microsoft. In the event Microsoft terminates the Agreement for cause, all amounts due under any unpaid invoices shall become due and payable to Microsoft Sales Affiliate immediately.

c. Warranties, defense, and limitations of liability. All warranties, obligations to defend against third-party claims and limitations of liability shall also apply to claims under the Purchase Agreement. Microsoft, as licensor, is solely responsible for claims relating to the performance of Products and defense of third-party claims (including claims of intellectual property infringement). Microsoft Sales Affiliate is not liable for such claims and, to the maximum extent permitted by applicable law, expressly disclaims all express, implied and statutory warranties and liability for such claims, including, without limitation, warranties of quality, title, non-infringement, merchantability, and fitness for a particular purpose.

d. Applicable law. The applicable law will be that of the jurisdiction where the Microsoft Sales Affiliate has its headquarters.

e. Additional terms. Any additional terms that Microsoft Sales Affiliate presents in connection with an order are deemed included. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.