TERMS AND CONDITIONS  FOR PROVISION OF GOODS AND SERVICES 

Application and entire agreement 
  1. These Terms and Conditions apply to the provision of the service items detailed in our quotation (Service Items) by Opimise Ltd a company registered in England and Wales under number 12077587 whose registered office is at 6 Cromwell Road, High Wycombe, Buckinghamshire, HP13 7AN (we or us or Service Provider) to the business buying the Service Items (you or Customer). 
  2. You are deemed to have accepted these Terms and Conditions when you accept our quotation, or upon payment of fees, or from the date of any provision of the Service Items (whichever happens earlier) and these Terms and Conditions and our quotation (the Contract) are the entire agreement between us. 
  3. You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. 

Interpretation 
  1. A "business day" means any day other than a Saturday, Sunday or bank holiday in England and Wales. 
  2. The headings in these Terms and Conditions are for convenience only and do not affect their interpretation. 
  3. Words imparting the singular number shall include the plural and vice-versa. 

Service Items 
  1. We warrant that we will use reasonable care and skill in our performance or supply of the Service Items which will comply with the quotation, including any specification in all material respects. We can make any changes to the Service Items which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary. 
  2. We will use our reasonable endeavours to complete the performance of the Service Items within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations. 
  3. All of these Terms and Conditions apply to the supply of any products or goods (Goods) as well as Service Items unless we specify otherwise. 
 
Installation and Testing of Goods 
10. Following any installation of software or hardware Goods, we will submit the Goods (as appropriate) to installation tests (if any) to ensure that the Goods are in full working order.  
11. We will supply you with copies of any available test specifications and results if so requested. 
  
Warranties  
12. We warrant and undertake that we shall carry out any installation of the Goods that are included in an accepted quotation and such installation will be free from defects in workmanship.  
13. We further warrant that documentation relating to the Goods (including operating manuals and technical specification) will enable suitably qualified or trained personnel of the Customer to make proper use of the Products.  
14. Subject as provided below we will in perpetuity be responsible (without charge to you) for rectifying any Defect identified in software Goods that are proprietary to us. 
15. Obligations we have under the Defects Warranty (14) are contingent upon you giving us without delay and free of charge, full details of the defect and adequate time and access to the Goods during our normal working hours to rectify such Defect.  
16. Any repair of a Defect will then be subject to the same Defects Warranty. 
17. We will not be responsible for any problem arising from or caused by any modification (whether by alteration, deletion, addition or otherwise) made to the Goods or the Customer’s equipment or any part of it by persons other than us. If any unauthorised modification is made then, without prejudice to your other rights and remedies, the Defects Warranty (13) will be null and void. 

Liability and indemnity 
18. The total amount of our liability is limited to the total amount of Fees payable by you under the Contract. 
19. We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Service Items or Goods, or the performance of any of our other obligations under these Terms and Conditions or the quotation, for: 
  1. any indirect, special or consequential loss, damage, costs, or expenses or; 
  2. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third-party claims; or 
  3. any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or 
  4. any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or 
  5. any losses arising directly or indirectly from the choice of Service Items and how they will meet your requirements or your use of the Service Items or any Goods supplied in connection with the Service Items. 
20. You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees. 
21. Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability. 
 
Your obligations 
22. You must obtain any permissions, consents, licenses or otherwise that we need and must give us access to any and all relevant information, materials, properties and any other matters which we need to provide the Service Items. 
23. If you do not comply with clause 22, we can terminate the provision of Service Items. 
24. We are not liable for any delay or failure to provide the Service Items if this is caused by your failure to comply with the provisions of this section (Your obligations). 

Fees and Deposit 
25. The fees (Fees) for the Service Items are set out in the quotation and might be a fixed set price for payment online through a website before we supply Service Items. 
26. In addition to the Fees, we can recover from you a) reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the performance of the Service Items, and c) the cost of any materials required for the provision of the Service Items. 
27. You must pay us for any additional Service Items provided by us that are not specified in the quotation in accordance with our then current, applicable hourly rate in effect at the time of performance or such other rate as may be agreed between us. The provisions of clause 26 also apply to these additional Service Items. 
28. Unless otherwise stated, the Fees are exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority. 
29. If applicable, you must pay a deposit ("Deposit") as detailed in the quotation at the time of accepting the quotation.  
30. If you do not pay the Deposit to us according to the clause above, we can either withhold provision of the Service Items until the Deposit is received or can terminate under the clause below (Termination). 
31. The Deposit is refundable only if you confirm to us in writing during a trial period that you no longer wish to receive Goods detailed in the quotation, or if we fail to provide the Service Items and are at fault for such failure (where the failure is not our fault, no refund will be made), or where notice of cancellation is made as set out under the clause Circumstances beyond a party's control. 

Cancellation and amendment 
32. We can withdraw, cancel, or amend a quotation if it has not been accepted by you, or if the Service Items have not started, within a period of 14 days from the date of the quotation. 
33. Either we or you can cancel an order for provision of Service Items for any reason prior to your acceptance (or rejection) of the quotation. 
34. You can serve notice to cancel an order for provision of Service Items at any time within a trial period and if such notice is served, these terms and conditions will continue to apply until we have enacted Removal of software (clause 48). 
35. If you want to amend any details of the Service Items you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and any additional costs will be included in the Fees and invoiced to you. 
36. If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party's control), we have to make any change in the Service Items or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum. 

Payment 
37. If payment is not made before we provide the Service Items, we will invoice you for payment of the Fees either: 
  1. when we have completed the Service Items; or 
  2. on the invoice dates set out in the quotation. 
38. You must pay the Fees due within 30 days of the date of our invoice or otherwise in accordance with any credit terms agreed between us. 
39. Time for payment shall be of the essence of the Contract. 
40. Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 4% per annum above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full. 
41. All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part. 
42. If you do not pay within the period set out above, we can suspend any further provision of the Service Items and cancel any future Service Items which have been ordered by, or otherwise arranged with, you. 
43. Receipts for payment will be issued by us only at your request. 
44. All payments must be made in British Pounds unless otherwise agreed in writing between us. 

Sub-Contracting and assignment 
45. We can at any time assign, transfer, charge, subcontract, or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of our obligations to any third party. 
46. You must not, without our prior written consent, assign, transfer, charge, subcontract, or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions. 

Termination 
47. We can terminate the provision of the Service Items immediately if you: 
  1. commit a material breach of your obligations under these Terms and Conditions; or 
  2. fail to make pay any amount due under the Contract on the due date for payment; or 
  3. are, or become, or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or 
  4. enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or 
  5. convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency. 

Removal of software 
48. You will allow us access to your computer equipment to remove installed software Goods set out in the quotation if you decide to cancel during a trial period (clause 34) or if you do not make a payment that is due (clause 47b). 

Intellectual property 
49. We reserve all copyright and any other intellectual property rights which may subsist in any Goods developed or manufactured by us. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights. 

Commercial protection of Goods 
50. With Goods developed or manufactured by us, you will not reproduce a functional feature, or any combination of features. 
51. With Goods developed or manufactured by us, you will not extract or otherwise make a copy of a functional feature, or any combination of features. 

Data Protection 
52. When supplying the Service Items to the Customer, the Service Provider may gain access to and/ or acquire the ability to transfer, store or process personal data of employees of the Customer. 
53. The parties agree that where such processing of personal data takes place, the Customer shall be the 'data controller' and the Service Provider shall be the 'data processor' as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time. 
54. For the avoidance of doubt, 'Personal Data', 'Processing', 'Data Controller', 'Data Processor' and 'Data Subject' shall have the same meaning as in the GDPR. 
55. The Service Provider shall only Process Personal Data to the extent reasonably required to enable it to supply the Service Items as mentioned in the Contract or as requested by and agreed with the Customer and shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for its own or for any third party's purposes. 
56. The Service Provider shall not disclose Personal Data to any third parties other than employees, directors, agents, sub-contractors or advisors on a strict 'need-to-know' basis and only under the same (or more extensive) conditions as set out in these terms and conditions or to the extent required by applicable legislation and/or regulations. 
57. The Service Provider shall implement and maintain technical and organisational security measures as are required to protect Personal Data Processed by the Service Provider on behalf of the Customer. 
56. Further information about the Service Provider's approach to data protection are specified in its Privacy policy, which can be found at Opimise.com. For any enquiries or complaints regarding data privacy, you can email: [email protected]. 

Circumstances beyond a party's control 
58. Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, either of us may terminate or cancel the Service Items to be carried out under these Terms and Conditions. 

Communications 
59. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party). 
60. Notices shall be deemed to have been duly given: 
  1. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; 
  2. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; 
  3. on the fifth business day following mailing, if mailed by national ordinary mail; or 
  4. on the tenth business day following mailing, if mailed by airmail. 
61. All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party. 

No waiver 
62. No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy. 

Severance 
63. If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that/ those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable). 

Law and jurisdiction 
64. This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.