Definitions
1. The following terms shall have the meaning ascribed to them by this clause where they arise within this Agreement:
"Agreement" means this fixed term agreement between Computle and you.
“Standard Fee" means the payments due in each month whilst this Agreement remains in existence to be found from time to time on the relevant page of Computle’s website plus VAT.
“Premium Fee" means the payments due in each calendar year whilst this Agreement remains in existence in the sum to be found from time to time on the relevant page of Computle’s web site plus VAT.
"Commencement Date" means the date you download or access the Computle Software.
"Term" the period of the Agreement applicable to the Standard Fee (monthly) and/or the Premium Fee (annual) and/or Low-Cost Hibernation Fee (monthly) and/or Computle Software Maintenance Fee (as herein after defined) purchased by you.
“Computle Goods" means all of the computer products (the Computle Monitor and/or Computle Box) which shall comprise a personal computer (and optional monitor) (without keyboard and mouse) including all additions and modifications and replacement parts and other products, supplies which are leased to you under the terms conditions of this Agreement.
“Computle Software" means and software which is leased to you on the terms conditions of this Agreement, including all their subsequent modifications, upgrades, new versions and releases including where applicable Third-Party Software.
“Computle System” shall mean the Computle™ Goods and Compute Software.
“Computle Maintenance Support Centre” means Computle address set out on our website.
“Computle Support” means the hardware maintenance and/or Computle Software and Third-Party Software support services provided by Computle to you on the terms and conditions of this agreement.
"Deposit" means the payment of £100 pounds sterling (or equivalent currency as stated on Computle's website) plus the value-added tax applicable for the processor or £200 for the processor together with the computer monitor.
“Low Cost Hibernation Fee” means the fee payable by you during periods of this Agreement in respect of which you notify Computle of your intention to cease use of the Computle Software whilst retaining possession of the Computle Goods at a fee of £5 per month plus tax for your data storage of up to 256 gigabytes and at £0.04 per month for each further gigabyte of storage.
“Preventative Maintenance” means that maintenance provided by Computle to ensure that the Computle System is operating at a standard level pursuant to this Agreement.
“Remedial Maintenance” means maintenance provide by Computle to repair an identifiable fault in your Computle System.
“Site” means the location where the Computle System is installed as notified by you to our website.
"Third-Party Software" means all software owned by a third party, but legally licensed for distribution by Computle or as part of the Computle Software.
"Total Cash Price" means the cumulative value of the Computle Software and Computle Goods including Value Added Tax.
“You” means the person/entity who is responsible for the leasing of the Computle Goods and Computle Software, and maintenance services from Computle.
Licence to use Computle Software
2. Computle grants to you a non-exclusive, non-transferable licence to use the Computle Software, including where appropriate Third-Party Software, in accordance with these terms and conditions including its termination provisions.
3. You shall use the Computle Software on a Computle System only for your own internal purposes and at the address specified in your digital form completed on Computle’s website.
4. If the Computle System is to be used by multiple users you must: (i) identify the number of users and their respective identities, and (ii) pay the Standard Fee and/or Premium Fee as appropriate in respect of each and every such user. Further, any additional users to those already identified of the Computle System must be notified to Computle and the said Standard Fee and/or Premium Fee as applicable be paid by you in respect of each such further additional user.
5. You at your own cost may use the Computle Software temporarily on an alternative processor to the Computle System for the purpose of disaster recovery but not more than twice a year (assuming you renew this Agreement for such a period) for the purpose of testing disaster recovery procedures.
6. You may license the Computle Software to an alternative processor forming part of the Computle System or may relocate the Computle System within the country of supply provided that written notice is given to Computle. Any transfer the Computle Software to a processor other than the Computle System requires the prior written consent of Computle and payment of an additional fee of £20.
7. Should you wish to upgrade or change the Computle System, notice must be given to Computle and is subject to Computle’s prior written consent and payment of additional fee applicable from time to time set out on the pages of Computle’s website.
8. You are not permitted to dispose of the Computle System.
9. You agree to comply with and be bound by any additional Third-Party Software conditions notified to you by us on or before delivery of any Third-Party Software (including, if so required, the execution and return of a Third-Party Software Licence) and INDEMNIFY Computle against any action by a Third-Party Software owner as a result of any breach by you of such terms and conditions.
Duration
Standard Fee
10. If you have elected for Computle’s Standard Fee, this Agreement commences on the Commencement Date and/or the taking of delivery by you of the Computle Goods whichever the sooner and lasts for a minimum term of one (1) calendar month subject to renewal of that term automatically for further 1 monthly periods. It will then continue in effect until terminated by you on 14 days’ prior written notice of termination to Computle’s contact form on our website subject always to the other termination provisions of this Agreement.
Premium Fee
11.
If you have elected for Computle’s Premium Fee, this Agreement commences on the Commencement Date and/or the taking of delivery by you of the Computle Goods whichever the sooner and lasts for a minimum term of one (1) year subject to renewal of that term automatically for a further period of 3 months renewable automatically unless terminated by Computle or you. It will then continue in effect until terminated by you on 14 days’ prior written notice of termination to Computle’s contact form on Computle’s website subject to the other termination provisions of this Agreement.
12. Computle agrees to lease to you and you agree to lease from the Computle, solely for your own personal use and/or the internal purposes of its business, such of the Computle Goods as you have elected and licence the Computle Software for the fixed term applicable to the Standard Fee and/or Premium Fee as appropriate. The risk of loss or damage of to the Computle Goods and Computle Software will pass to you on the date of delivery of the Computle Goods to you.
13. Upon receipt of the Deposit, Computle will provide you with a user name and password to the Computle System. You are not permitted to share that username and password with any third party unless you have previously agreed to pay Computle the usage fees set out on its website from time to time applicable and upon a monthly basis. You must maintain that user name and password as confidential for the duration of this Agreement and shall not disclose the user name and/or password to third parties for any reason. In the event you misplace either your user name and/or password you must contact Computle who will within a reasonable time supply you with a new one.
14. Computle may terminate this Agreement should you fail to make any payment/instalment of any fees due and payable to Computle hereunder.
15. In the event either party terminates this Agreement without prejudice to Computle’s other rights in law or equity or under this Agreement Computle will repay you the Deposit but charge you for:
15.1 any other sums already due to the Computle and unpaid;
15.2 all further payments you will have paid had the leasing continued for the fixed term as appropriate, discounted at the rate of 3% per annum from the date each further payment would have fallen due to Computle to the last day of that fixed term;
15.3 the Computle’s reasonable costs in dealing with the administrative costs and any transport costs and insurance in returning to it the Computle System; and
15.4 interest charged rate is 2% per month compound in respect of any late payments, until the date of actual receipt of such payments whether before or after any judgement;
15.5 any fair wear and tear of the Computle Goods.
16. Termination of these license provisions will automatically terminate any support obligations by the Computle for the Computle Software.
Supply, Installation and Acceptance
17. Supply of the Computle Software (along with the Computle Goods) will be made to the address you have provided as a delivery address on our website. Computle will make all reasonable efforts to keep to the installation dates agreed between us but under no circumstances will the Computle be liable for damages or costs arising from any delay in delivery of the Computle System to you.
18. You will be deemed to have accepted the Computle System including Computle Software during the seven [7] days next following the date you take delivery of the Computle Goods incorporating the Computle Software.
19. Use of the Computle Software is conditional upon payment of any fees due by you under this Agreement.
Rights in the Computle Software 20. No rights of title and/or ownership, copyright or any other intellectual property right in the Computle Software and/or Third-Party Software, including all upgrades, modifications and/or new versions and/or releases of the Computle Software will be transferred to you.
21. You understand that the Computle Software and/or Third-Party Software contains proprietary information and you agree that, except in accordance with the express written authority signed by an authorised signatory of Computle, you will not provide or otherwise make any of the Computle Software available for any reason to any other person, firm, company or organisation (whether for outsourcing purposes or otherwise).
22. You will not copy or permit the Compute Software and/or Third-Party Software to be copied, except for the reasonable security and backup purposes. Any copy made shall include all copyright and other proprietary notices.
23. You will ensure all of your relevant employees, agent, sub-contractors are advised that the Computle Software and/or Third-Party Software constitutes confidential information and that all intellectual property rights in it are the property of the Computle and its and/or the Third-Party Software suppliers as appropriate and you will use reasonable endeavours to ensure that your employees, agents, and sub-contractors comply with all of the terms and conditions of this clause.
24. Recognising that the Computle Software and/or Third-Party Software has significant commercial value to the Computle YOU AGREE TO INDEMNIFY the Computle in respect of any loss or expense incurred by Computle as a result of any unauthorised use of the Computle Software and/or Third-Party Software by any third party caused by you, whether through misuse of the Software object code by you or any other breach by you of this Agreement or through your negligence or any other cause.
YOUR UNDERTAKINGS
25. You acknowledge that you are licensed to use the Computle Software and Third-Party Software only in accordance with the express terms of this Agreement.
26. You undertake:
26.1 to satisfy yourself that the Computle Software and Third-Party Software meets your needs or of your business. It is your sole responsibility to determine that the Computle Software is ready for your operational use or that of your business before it is used;
26.2 to allow the Computle to study your information and data used with the Computle Software for the purpose of rectifying any problem with the Computle Software;
26.3 to ensure that the operating system and compiler and any other software with which the Computle Software will be used is either your property or is legally licensed for use with the Computle Software. YOU SHALL INDEMNIFY Computle in respect of any claims by third parties and all related costs, expenses or damages in the event of any alleged or actual breach of third-party proprietary rights which result in any claims against Computle;
26.4 You will at all times employ a suitable electrical power surge prevention device to the Computle System when using it.
27. You warrant that the Computle Software and Third-Party Software and all copies will remain under your personal control and you will take all reasonable precautions to safeguard the Computle Software and Third-party Software against unauthorised use.
28. You hereby acknowledge that you are the best judge of the value and importance of the data held on the Computle System and that you take sole responsibility for instituting and operating all necessary back-up software procedures (for your own benefit) to ensure the integrity of your data can be maintained in event of loss of your data for any reason.
29. You must not attempt the de-compilation of any of the Computle Software or Third-Party Software for error correction or any other purpose save in the exercise of any statutory rights you may have in which event you will give Computle reasonable notice of your intention.
Computle's Warranties
30. Computle warrants that it has good title or is otherwise authorised to license the Computle Software and Third-Party Software to you.
31. Computle represents and warrants to you that at the time of delivery of the Computle Software to you it is a complete, accurate and up-to-date copy of the current release.
32. The Computle Software is designed to conform to the software product specification set out on the “Plans” or “Pricing” page(s) of Computle’s website applicable at the time of your order however Computle does not warrant that the Computle Software will work without interruption or that it is error-free.
33. Computle’s sole obligation in the event of non-conformity will be:
33.1 in the case of Computle Software developed or owned by the Computle to remedy any nonconformity of the Computle Software and specification or user guide; and
33.2 in the case of Third-Party Software to obtain and supply a corrected version where there is a demonstrated nonconformity to the specification, provided in either case that the Computle has been notified of the nonconformity within 20 days of the date of delivery to you.
34. The above constitutes the only warranties provided by Computle in respect of the Computle Software and Third-Party Software. The obligations and liabilities of Computle set out in this Agreement replace all implied guarantees and warrantees, including without limitation and warranty of satisfactory quality or fitness for a particular purpose which is your responsibility to determine.
35. You acknowledge that:
35.1 The Computle Software not Third-Party Software has not been produced to meet your individual specifications;
35.2 The Computle Software and Third-Party Software cannot be tested in advance in every possible operating combination and environment;
35.3 it is not possible to produce software known to be error free in all circumstances;
35.4 Computle recommends that you purchase its support and maintenance of the Computle Software under its Computle Support add-on.
Modifications
36. Computle reserves the right to make improvements, substitutions, modifications and/or enhancements to any part of the Computle Software and/or Third-Party Software provided that the functionality and performance of that software will not as a result be materially affected to your detriment.
Computle Goods
37. You agree until such time as possession of the Computle Goods is transferred to you under or the Goods are returned to the Computle in accordance with the termination provisions of this Agreement, you are solely responsible for:
37.1 selecting the Goods;
37.2 ensuring the Goods are suitable for your requirements in every way;
37.3 ensuring that once you have taken possession of the Computle Goods they are in good working order and the Computle Software and/or Third-Party Software meets your requirements and is fit for purpose;
37.4 ensuring that the Computle System is used only in the normal course of your own personal use and/or of your business and in accordance with the manufacturer’s instructions and guidelines and in compliance with health and safety legislation AND YOU AGREE TO INDEMNIFY the Computle from and against any loss, damage, or injury to people or property caused by any misuse of the Computle System by you;
37.5 retaining possession of Computle Goods, and not doing anything that would interfere with Computle’s interest in the Computle System, including without limitation disposing of the Computle Goods and/or claiming and/or allowing any other entity or person to claim capital allowances on them;
37.6 ensuring that the Computle System remains at the delivery/installation address notified by you to Computle. If you wish to relocate the Computle Goods, you must first obtain from Computle written consent;
37.7 connecting and disconnecting the Computle Goods; 37.8 installing the Computle Goods; 37.9 keeping the Computle Goods in good working order, condition and repair;
37.10 ensuring that the Computle Goods are not altered or modified in any way without Computle’s prior specific written consent;
37.11 the risk of any loss or damage to the Computle Goods, however caused;
37.11 complying with your responsibilities and these terms conditions of supply;
37.13 notify Computle immediately if the Computle Goods are lost, stolen, damaged or confiscated;
37.14 not removing or defacing any notice of ownership of Computle on any of the Computle Goods, and ensuring the Computle Goods do not become affixed to any land or building.
If you have any complaints upon taking delivery of the Computle Goods concerning delivery areas, shortfalls, conditions of the Computle Goods, or any other matter you must notify Computle immediately of your complaint with as much information as possible and provide Computle with a detailed written statement of the complaint within five (5) working days of delivery. Computle is entitled to assume that you are completely satisfied with the Computle Good if it has not received any such statement written statement.
Maintenance: The Leased Computle System
38. Unless you have paid for Computle Support during the Term you are solely responsible for ensuring that the Computle System is kept in optimum operating condition at all times, except only for fair wear and tear of the Computle System.
39. If you have paid for Computle Support it will be charged and provided by Computle as set out in this Agreement.
Payments
40. You undertake to pay Computle the Deposit on or before the Commencement Date and thereafter the Standard Fee and/or Premium Fee as appropriate by direct debit and/or credit card from the first day of each of the next following months.
41. Your bank or credit card issuer may charge additional service fees for international credit card payments (“Foreign Transaction Fee”), depending on whether you provide payment in a foreign currency or to a merchant established in another country.
42. Foreign Transaction Fees charges and amounts are individually agreed upon between banks/credit card issuers and yourself. Computle has no insight into such agreements and therefore is unable to provide information/advice on Foreign Transaction Fees and/or similar fees or charges.
THE PARTIES AGREE THAT, THEREFORE, ANY LIABILITY ON THE PART OF COMPUTLE FOR ANY FOREIGN TRANSACTION FEES IS EXCLUDED AND THAT THE CUSTOMER IS SOLELY AND EXCLUSIVELY LIABLE FOR PAYING SUCH FOREIGN TRANSACTION FEES.
43. If you chose direct debit as a payment method, you will be notified by means of a pre-notification ("Pre-Notification") directly after submitting your order for the Computle System. Your account will be charged the day after Pre-Notification.
44. You shall be entitled to elect upon 14-days prior written notice to Computle to make a Low-Cost Hibernation Fee in substitution for the Standard Fee and/or Premium Fee as appropriate. During the period over which monthly Low-cost Hibernation Fees are made all outstanding payments falling due and owing to Computle by you shall remain due and owing, and Computle shall suspend supply of the Software until you either give notice of termination of this Agreement or make those outstanding payments.
45. All payments must be made by Direct Debit/Credit Card unless Computle otherwise agrees in writing. If you do not make payments by Direct Debit or Credit Card an extra 5% of the amount of payment will be charged on each payment to cover the Computle’s increase costs of administration.
46. All payments must be paid in full and on time and time is of the essence for this purpose.
47. All payments must be made free of any set off, deductions or withholdings.
48. You will be responsible any costs incurred by Computle in recovering money owed to it (including collection agents fees) plus an overdue amount at the rate of 2% per month calculated on a daily basis until payment is actually received whether before or after any judgement. The Computle may also charge you the sum of £12 for administrative purposes each time you fail to make a Direct Debit or Credit Card payment. In addition, the Computle shall be entitled to impose an administrative charge of £10 per item of correspondence in respect of overdue payments.
Insurance
49. Unless the parties have agreed in writing you are permitted to self-insure. If you do so, such insurance of the Computle Goods must be in respect of any loss (including total loss) or damage from all risks and against all third-party risks. The amount of such insurance must be at least Total Cash Price.
50. In the event you arrange insurance with a third-party insurer, you must arrange for Computle’s interest in the Computle Goods to be endorsed on any such policy of insurance and show proof whenever Computle requests it. You must notify Computle of any insurance arrangements you have made, if any.
51. Whether you self-insure or effect third-party insurance Computle may, at your expense, arrange for the insurance the Computle Goods.
52. In such circumstances Computle will add an amount equal to the insurance premium to the next due Standard Fee and/or Premium Fee as appropriate. If you have to make an insurance claim for the Computle Goods you must inform Computle immediately. You are not authorised to agree a settlement of a claim without written permission from Computle. You agree to appoint Computle as agent for the purposes of managing any claim and authorising the insurance company to pay any settlement claims on the Computle Goods directly to the Computle.
Remedies
53. On termination of this Agreement for any reason, at Computle’s option but at your expense you will return the Computle Goods to Computle’s UK address set out in its website or other address designated by the Computle within 10 working days together with any ancillary equipment originally supplied, all in good operating condition fair wear and tear excepted. or allow the Computle to collect the Computle Goods from you during normal business hours. Any cost incurred by Computle in collecting the Computle Goods and/or and restoring them to normal operating condition will be borne by you and payable to Computle on demand. If you fail to deliver up Computle Goods for any reason, you will be liable to Computle for their replacement costs being the higher of the outstanding sums owing under this Agreement or the then fair market value of the Computle Goods based upon Total Cash Price, without prejudice any other rights or remedies available to less or in law or equity under this Agreement.
54. If the Computle recovers the Computle Goods and is able to sell them it will apply any proceeds of sale after deducting any value-added tax and its costs in repossessing and selling the Computle Goods in the following order:
54.1 towards any amounts due but not paid by you;
54.2 towards any anticipated future value of the Computle Goods at the end of this Agreement discounted at the rate of 2% per annum from Commencement Date to the date of receipt by Computle of the proceeds of sale; and
54.3 if any balance remains, the Computle will rebate this to you.
Ownership of Computle Goods and Exercise of Option to Purchase
55. During the leasing of the Computle Goods, the Computle Goods will be and remain at all times the movable, personal and chattel property of Computle. Other than a right to possession in the Computle Goods during the Term of this Agreement and its renewal (provided and for so long as you are not in breach or default of this Agreement) you will not have any right title or interest in the Computle Goods except as a lessee and as set out in this Agreement
Computle Maintenance and Support Cover
56. Computle Goods Maintenance Services and Software Maintenance Services will be provided by Computle at a fee of £15 per calendar month per named user.
57. All services will be performed within Computle’s normal working hours of 9 AM to 5:30 pm Monday to Friday Greenwich Mean Time excluding public holidays for both remedial and maintenance services. Out of hours services can be provided by arrangement and will be charged at Computle’s current UK extended cover rates. Where out of hours services are provided on a permanent basis, Computle’s extended set cover charges will be payable which are detailed in the relevant page on our website
Eligibility for Computle Maintenance and Support Cover
58. Computle Goods must be in normal operating condition as determined by Computle and be at a Computle supported revision level.
Computle Goods Maintenance Services
59. Computle will provide the following Computle Goods Maintenance Services:
59.1 Computle will provide a website portal in order to triage your faults with the Computle System. If warranted by Computle will provide telephone support which will be available to you during Computle’s normal working hours applicable to UK time for the purpose of reporting equipment malfunctions.
59.2 In all circumstances your requests for services will receive priority of response over the calls from other customers of Computle who have not entered into any agreement with Computle for the provision of Computle Goods Maintenance Services.
59.3 The Computle Goods Maintenance Services include the diagnosis and correction of equipment malfunctions and failures. Remedies may consist of (a) temporary procedures to be followed by a permanent repair or remedy. If Computle determines an additional part, particularly a replacement power supply, is required provision of the Computle Goods Maintenance Services maybe interrupted and will resume as soon as such parts or resources are available. (b) otherwise Computle will replace the Computle Goods at its absolute discretion.
59.4 In respect of clause 59.3 (a) replacement parts are provided to you either on an interim loan or on an exchange basis. Such parts may be new or functionally equivalent to new. Where parts are replaced, the replaced parts become the property of Computle.
59.5 At your request, Computle may move any from the existing Site and install it at a new site subject to giving you reasonable notice and agreeing to pay Computle its current charges for this service. You remain responsible of any shipping arrangements, insurance cover for that removal. Moving a Computle Good to a different site may result in increased charge for that Computle Good and Computle will notify you of the new charge and the cost.
Computle Hardware Maintenance Services Exclusions
60. Computle’s obligation to provide the Computle Hardware Maintenance Services is contingent upon the proper use of the Computle System and does not cover Computle Goods which have been moved without Computle’s prior approval or which have been subjected to unusual physical electrical stress.
61. Computle is under no obligation to furnish the Computle Hardware Maintenance Services where in Computle’s reasonable opinion these are required because of: 61.1 any failure of a Computle System as the result of an accident, neglect, misuse, failure of electrical power, air conditioning or humidity control; 61.2 modification and/or attempts to repair the Computle System made without Computle’s prior written approval; 61.3 damage caused to a Computle System including but not limited to a failure in electrical power, inadequate cooling, fire ,flood or other natural disasters; 61.4 failure by you to maintain the Computle Software on the Computle Goods at Computle’s specified release level unless otherwise specifically agreed in advance by Computle; If Computle, in its opinion, decides that the above were individually or collectively the causes of failure of the Computle System Computle will supply the Computle Hardware Maintenance Services charged at Computle's hourly rates.
62. Computle will reserve the right to not provide Computle Hardware Maintenance Services and charge their costs and expenses incurred if a call is not warranted; access to the Computle System is prevented by the environmental conditions of the Site and/or they are considered by Computle to be unsafe or hazardous.
63. The Computle Hardware Maintenance Services do not include: 63.1operating supplies and accessories and other consumables which must be paid for by you; 63.2 any electrical or other work external to the Computle System; 63.3 equipment not covered by this Agreement.
64. Computle reserves the right at any time to give 14 -days’ notice to you that the Computle Goods cannot continue to be economically repaired due to excessive wear and deterioration and in such a case supply you with an estimate of reconditioning charges and if you do not elect to have the Computle Goods reconditioned Computle may terminate this Agreement or at its option replace the Computle Goods.
65. Computle reserves to itself the right to upgrade the Computle Goods at any point following the Commencement Date of this Agreement.
Computle Software Support Service
66. The Computle Software Support Service is limited to the following:
66.1 remote fault diagnosis and where possible recommendations for correction following the reporting of any software problem by telephone by you to Computle’s Maintenance and Support Centre. Computle undertakes to investigate a problem within eight (8) working hours after receiving your call.
66.2 Computle will classify the problem as critical or non-critical to the fundamental operational of the Computle Software and the following procedure will apply:
66.2.1 critical problems: Computle will attempt to generate a fix by modifying the Computle Software to conform to its specification and sending and/or transmitting a modification to you as soon as possible. Computle will use reasonable endeavours to correct any defect in the Computle Software because it does not conform to its specification or to modify the Computle Software to obviate or mitigate the need to correct the defect.
66.2.2 Non-critical problems: Computle will attempt to generate a fix for incorporation into the next release of the Computle Software. Where feasible, Computle may provide a temporary workaround for you. Computle will determine what action, if any, it proposes to take based upon the importance of the problem to the customer and the likely general benefit of any solution.
66.3 In no event will Computle be required to correct a problem reported by you and Computle reserves the right to abandon attempts at a fix where the costs are likely to be excessive or the general benefit to Computle’s customers at large are likely to be negligible.
66.4 Diagnosis and solution of operational problems will generally be carried out remotely from the Site but where the circumstances require, you are entitled to up to 2 visits by the supply each year by Computle that this Agreement continues in force. If it becomes necessary to carry out the Computle Software Support Services at the Site, such will be chargeable at Computle’s then prevailing daily rate, payable monthly in arrears in accordance with the payment terms set out from time to time on the relevant page of Computle’s website.
66.5 Telephone advice and assistance on user procedures on ideas and methods intended to assist you to attain the best possible use from the Computle Software may be provided by Computle at Computle’s discretion.
66.6 One copy of any new version of Computle Software released by Computle from time to time including related documentation if appropriate.
Additional Computle Software Maintenance Services
67. Computle will also offer you the following services at such charges and on such terms as you and Computle may agree from time to time:
67.1 consultation for the resolution of those problems experienced by you and operating the Computle System are not covered by the Computle Software Support Service;
67.2 on-site services to carry out such work at the Site as the parties may agree from time to time;
67.3 consultation about enhancement of the Computle Software.
68. Throughout the term of this Agreement Computle will perform Preventative Maintenance routines on the Computle System where such routines are applicable. Such Preventative Maintenance may be performed in conjunction with your requested cover of Remedial Maintenance and will be performed during normal working hours applicable to UK time unless requested by you and Computle agrees to perform Preventative Maintenance outside normal working hours applicable to UK time at Computle’s current charge rate applicable to such out of hours services. However, some Remedial and/or Preventative Maintenance may necessitate system downtime which Computle will endeavour to complete as soon as reasonably possible.
Computle Software Support Service Exclusion
69. Computle is not obliged to support the Computle Software if you are not using a version of the operating system software as specified by Computle from time to time or if you fail to maintain the Computle Software at Computle’s best guide release level unless specifically agreed in advance by Computle.
70. Computle will undertake responsibility for Computle Software on designated Computle Goods and only if such hardware is covered by this Agreement.
71. On Site Computle Software Support services are not included as a standard feature of this Agreement.
72. The Computle Software Support Services do not include services in respect of defects or errors resulting from any modification or enhancements to the Computle Software not made by Computle or made without Computle’s prior written consent or resulting from incorrect use of the Computle Software.
73. Computle is not obligated to support the Computle Software if malfunctions are due to incorrect use of the Computle Software or for any reason external to the Computle Software including but not limited to failure or fluctuation of electrical supplies, non-Computle hardware failures, accidents or natural disasters.
DISCLAIMERS
74. Computle will use its reasonable endeavours to perform the Software Support Maintenance Services promptly but no warranty is given in respect of any times for response or performance by Computle and time will not be of the essence.
75. Computle is not liable for delay arising from any industrial dispute or any cause outside its reasonable control and any agreed timescale will be subject to an extension in the event such delay.
76. The provision of these Computle Software Support Services does not include any guarantee or representation Computle will be liable to assist you to achieve any results from any Computle System which are not technically feasible. Subject to this, any services which are outside the scope of this Agreement will, at your request and at Computle’s option be provided at Computle’s then current rates for such services.
77. Provision of Computle Software Support Services does not imply any guarantee Computle will be successful in correcting any software malfunctions and Computle does not accept any liability in this connection.
78. Computle reserves the right to refuse Computle Software Support Services at any time without refunding any sum paid by you:
78.1 if any attempt is made other than by Computle to remove any defects or deal of any error in the Computle Software; or
78.2 if any development and enhancement or variation of the Computle Software is carried out any one other than by Computle; or
78.3 if you fail to pay Computle in accordance with the provisions of this Agreement; or
78.4 where in the reasonable opinion of Computle the Computle System has ceased to be capable of running the Computle Software successfully for any reason; or
78.5 when modification made to the Computle System without the prior agreement of Computle.
Your Responsibilities
79. You warrant that:
79.1 use of the Computle System is in accordance with Computle's operating instruction and with suitable operating hardware supplies;
79.2 designate primary and secondary contacts for the telephone helpline which is limited to these designated contacts;
79.3 maintain procedures to facilitate reconstruction of any lost or altered files or programs to the extent deemed necessary by you and you agree that Computle will not be liable under any circumstances for any consequences for loss or corrupt data files or programs. You are solely responsible for carrying out all necessary backup procedures for your own benefit to ensure that that data integrity can be maintained in event of any loss of data for any reason;
79.4 Be solely responsible for the security of its confidential and proprietary information and not to disclose such information to Computle except on a need-to-know base for the purpose of Computle’s performance of the service or otherwise as set out in this Agreement;
79.5 Notify Computle promptly of any Computle System malfunction;
79.6 Control the environmental conditions of the Site in accordance with any environmental operating ranges specified by Computle;
79.7 regularly perform the various routine and preventive maintenance and cleaning operations described in the applicable user guide lines or as advised by Computle including but not limited to any operating diagnostic checks. The cost to rectify any damage caused to the Computle System by not observing this will not be covered by this Agreement;
79.8 keep records of the Computle System usage and performance if requested by Computle in a mutually agreed format;
79.9 provide Computle access to and use of such of your information and facilities as is necessary to service the Computle System; 79.10 make all relevant Computle Goods freely available to Computle during any agreed preventative maintenance meeting to enable Computle by carrying out the Computle Software Support Services;
79.11 have a representative present at all times during the performance of remedial and preventative maintenance services;
79.12 provide ready access to a telephone at the Site on which external calls connected with Computle Software Support Services can be made received by Computle’s personnel;
79.13 ensure that you operate the Computle System in accordance with the operating instructions and manuals supplied;
79.14 Not make any modifications, additions to the Computle System except with Computle’s consent.
79.15 ensure that you maintain a suitable backup of your data for the entire period of this Agreement.
79.16 ensure that you maintain an internet connection for optimum use of the Computle System of a speed no less than 15 megabytes per second per Computle System.
79.17 all the information you provided when placing your order for the Computle System (including, but not limited to, personal data and payment data) was up-to-date and accurate in all material respects. The costs arising in relation to any incorrect data submitted by you or data amended by you after the submission of your order shall be borne by you. To the extent that you have access to a customer account with Computle you are responsible for maintaining and immediately updating your account details to ensure constant and continuous accuracy and completeness.
79.18 Should you not elect to be supplied a Computle monitor you are responsible for ensuring that monitor possesses HDMI connectivity and a suitable electrical supply adapter for that monitor.
Unlawful use of the Computle System
80. You agree not to conduct unlawful use of Computle System and services. If you breach any of the following or help or facilitate third parties to do so, we may suspend or terminate your use of the Computle System and services.
80.1 You may not use, or encourage, promote, facilitate or instruct others to use the Computle System and services for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive. Those activities or content include:
80.1.1 Any use that is illegal, including publishing child pornography, dealing in fraudulent goods, services, schemes, or promotions, phishing, pharming or mining.
80.1.2 Any use that infringes or misappropriates the intellectual property or proprietary rights of third parties.
80.1.3 Any use of content that is obscene.
80.1.4 Any use which may damage, interfere with, surreptitiously intercept, or expropriate any computer system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
80.1.5 Any use which breaches the security or integrity of any network, computer or communications system, software application, or network or computing device.
80.1.6 Any use without permission, including attempting to probe, scan, or test the vulnerability of a third-party computer system or to breach any security or authentication measures used by such a system.
80.1.7 Any monitoring of data or traffic on a computer system without consent.
80.1.8 Any use which involves forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. The legitimate use of aliases and anonymous remailers is not prohibited by this provision.
80.1.9 Any use which involves connecting to a network or hosts unless you have consent to communicate with them.
80.1.10 Any monitoring or crawling of a third-party computer system that impairs or disrupts that being monitored or crawled.
80.1.11 Any use which involves inundating a third-party computer system with communications requests so they are thereby unable to respond to legitimate traffic or responds so slowly that it becomes ineffective.
80.1.12 Any use which involves interfering with the proper functioning of any third-party computer system, including any deliberate attempt to overload that system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
80.1.13 Any use which involves the distribution, publishing, sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission. You will not collect replies to messages sent from another internet service provider if those messages breach this clause or the acceptable user policy of that provider.
81. Computle reserves the right without the obligation to investigate any breach of clause 80 by investigation; or removing, disabling access to, or modifying any of your content and/or terminating this Agreement.
GDPR and Data Storage
82. Computle seeks to be fully compliant with the General Data Protection Directive “GDPR” (as amended from time to time) adopted by the United Kingdom in General Data Protection Regulations (as amended from time to time).
83. By entering into this Agreement, you consent that Computle may process your personal data/data for any of the purposes set out in this Agreement including to restore the Computle System including the Computle Software on the Computle Goods including in the event you lose your data.
84. Computle will assume that the data you store on Computle’s server is personal data within the meaning of the GDPR and you agree to that assumption, unless you notify us otherwise within 7 days of processing data which is not personal data.
85. Computle will at all times exercise the appropriate policy required of it by the GDPR Act which in accordance with the fifth data protection principle requires that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
86. If you terminate this Agreement, Computle, subject to your notification otherwise Computle will retain your data stored on Computle’ servers for one calendar year during which time you will be entitled to contact Computle either to download that data on to your own storage device at Computle’s then standard charge as set out on Computle’s website from time to time or request Computle deletes your data. Following the expiry of that one calendar year Computle at its discretion will be entitled to delete your data.
87. Computle will offer to store your data on its servers for 4 pence sterling per gigabyte per month storage. You may expressly request that Computle stores your data on its servers provided that you make payment at Computle’s then current data storage costs as detailed on its website. The price Computle charges you for storage will also vary dependent upon the amount of storage you request as set out from time to time on the pages of our website.
88. If you have encrypted your data stored on Computle’s servers you must be prepared to provide Computle with that encryption key in order to allow Computle to process your data purely and solely for the purpose of Remedial Maintenance.
89. Apart from any encryption you apply to your data Computle may also add its encryption to it to which you are deemed to consent by accepting the terms and conditions of this Agreement.
90. If you fail to notify Computle within one calendar year of termination of this Agreement you have agreed that it will be deleted from Computle’s servers.
Distance Selling Directive - Cooling Off Period
91. The Computle is registered under company registration number GB12450580 at Companies House in England and Wales and its address is 30 Churchill Place, London. The main characteristics of the Computle Goods and Computle Software and can be found on the webpages of Computle’s website. The prices of those Computle Goods and Computle Software including taxes are set out in this Agreement and/or on the Computle website including delivery costs and
the arrangements for payment, delivery or performance.
92. You, not-withstanding anything set out in this Agreement, shall have a right to cancel your order of the Computle Goods and Computle Software and services as set out above, within 14 days of signing up to this Agreement by notifying the Computle at the address set out in clause 91 and then immediately returning the Computle Goods to Computle at the address set out in clause 91. Such notice can be sent to the Computle by email to jake.elsley@computle.com. The effect of such a notice shall be that this Agreement was never entered into between you and Computle.
93. If you are not satisfied with Computle’s adherence to clause 91 and 92 you are entitled to complain to the Computle at the email set out in clause [92].
94. If you elect to cancel this Agreement you will package the Computle Goods in a manner suitable for their safe return to Computle which shall pay for the cost of return of the Computle Goods to Computle by delivering to you a pre-addressed packaging for their return.
95. Upon receipt of the Computle Goods Computle will shall reimburse any sum paid by you less any charge made in accordance with clause 99.2 and/or 99.3.96. In the event that Computle is unable to supply the Computle Goods ordered by you because they are unavailable to it for supply to you Computle will provide substitute goods (including, as appropriate the Software) of equivalent quality of performance and price.
97. Should you reject the said substitute goods, the Computle shall meet the cost of the return of any such substitute goods to the Computle.
Your Right to Cancel
98. The provisions of this Clause shall only apply if you entered into this Agreement as a person domiciled in a member state of the European Union:
Cancellation
98.1.1 You shall have the right to cancel this agreement within fourteen (14) days without giving Computle a reason.
98.1.2. With respect to the Computle Software or any maintenance services Computle offers under this Agreement, the cancellation period shall be fourteen (14) days from the date this Agreement was concluded.
98.1.3 With respect to the Computle Goods, the cancellation period shall be fourteen (14) days from the date on which you take possession of them.
Exercise of the Right of Cancellation
To exercise your right of cancellation, you must inform Computle at Computle, C/O Jake Elsley, 15 Bishopsgate, London, EC2N 3AR, by making a clear declaration of your decision to cancel this Agreement (e.g. by letter sent by regular mail). You can use the cancellation form set out below, but you are not required to do so. You must cancel before the expiration of the periods set out above.
Legal Consequences of Cancellation
99.1. If you cancel this Agreement, Computle must promptly refund all of the payments Computle received from you, including delivery costs, no later than twenty-one 30 days from the date on which your notice of cancellation was received by Computle (with the exception of additional costs incurred because you chose a method of delivery which was not the most cost-effective one, i.e., the standard mode of delivery offered by Computle). For this refund, Computle shall use the same means of payment that was used by you, unless otherwise expressly agreed with you. Computle will not charge you a fee for the refund.
99.2. With respect to the Computle Software and maintenance services if you request that they commence during the cancellation period, you shall pay Computle a reasonable amount, which corresponds to the percentage of those services provided by the time you informed Computle of the exercise of your right to cancel the Agreement.
99.3. With respect to the Computle Goods Computle can refuse a refund until Computle has received the Computle Goods back from you or until you have evidenced that you have returned the Computle Goods back to Computle, whichever is earlier. You shall promptly return or send the Computle Goods to Computle no later than fourteen (14) days from the date on which you notified Computle of the cancellation of the Agreement. That is deemed to have happened if you return the Computle Goods before the expiration of the fourteen-day (14) period. You shall bear the direct costs of returning the Computle Goods. You must pay for any reduction in the value of the Computle Goods if attributable to you by handling the Computle Goods in an unsuitable manner in order to evaluate their quality, characteristics, and functionality.
Model Revocation Form
"To Computle, C/O Jake Elsley, 15 Bishopsgate, London, EC2N 3AR. I hereby cancel the Agreement set out on your website for the leasing of the following Computle Goods/the provision of services concluded by me. Ordered on [date]/received on [date]. [Your Name] [Your Address] [Your Signature]. [Date]."
Limitation of Liability
100. Computle’s liability (including and liability arising to you in consequence of any loss of your data) to you shall be limited to the value of its Public Liability Insurance of £1M and any outages in the service it provides hereunder of any nature are limited to the total sum paid by you to Computle as at the date that event giving rise to such loss arose. Computle shall have no liability for any consequential losses howsoever arising to you.
The Purchase by you of Multiple Computle Systems
101. The above terms and conditions apply with equal force and force to each and every Computle System supplied to you from Computle. Should you reduce the number of Computle Systems or any part thereof the provision of clauses 99.2 and 99.3 shall apply to those Computle Systems you return to Computle.
Entire Agreement
102. This Agreement constitutes the entire agreement and understanding between you and Computle and supersedes any previous agreement between you relating to the subject matter of this Agreement. You and Computle acknowledges that in entering this Agreement, you do not rely on and have no remedy in respect of any statement of fact or opinion not recorded in this Agreement (whether negligently or innocently made) except for any representation made fraudulently. No variation of these terms and conditions will be valid unless confirmed in writing by the click through of the acceptance box on Computle’s on website by you.
Severability
103. If any of the provisions of this Agreement is judged to be illegal and/or unenforceable the continuation in full force and effect of the remainder of them will not be prejudiced unless the substantive purpose of this Agreement is then frustrated in which case either party may terminate this Agreement forthwith on written notice.
Waiver
104. No forbearance or delay by you or Computle in enforcing its respective rights will prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
Relationship of the Parties 105. The relationship between the parties is that of independent contractor. Neither party is agent for the other, and neither party has authority to make any contract, whether expressly or by implication, in the name of the other party, without that other party's prior written consent for express purposes connected with the performance of this Agreement.
Rights of Third Parties
106. A person who is not party to this Agreement has no right to benefit under it or to enforce any term of this Agreement.
Assignment
107. Neither party will assign this Agreement or any benefit or interest arising under this Agreement without prior written consent of the other party which will not be unreasonably withheld or delayed save that Computle may assign this Agreement without your prior written consent provided that the transferee shall undertake to be bound by and perform all of the obligations of this Agreement as if originally a party to it.
Notices
108. Save for notification under clause 98, any notice given under this Agreement but either party to the other must be in writing and may be delivered personally or by recorded delivery and/or first-class post and in the case of post will be deemed to have been given two working days after the date of posting when the addresses of the parties are both in United Kingdom or seven working days after the date of posting when the notices is posted from an address outside the United Kingdom. Notices will be delivered or sent to the addresses of the parties set out on Computle’s website and as notified by you in accordance with clause 3 or to other addresses notified in writing by the by either party to the other for the purpose the receiving notices after the date of this Agreement. Any other method of communication was be agreed in advance by the Parties.
Force Majeure
109. Neither party will be liable to the other party for any delay in or failure to perform its obligations (other than a payment of money) as a result of any cause beyond its reasonable control. If such delay or failure continues for at least 90 days either party will be entitled to terminate the Agreement by notice in writing without further liability of either party arising directly as a result of such delay or failure.
Governing Law and Jurisdiction
110. This Agreement is governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the court of England and Wales or at Computle’s election to have any controversy or claim arising out of or in relation to this Agreement or any breach thereof to be settled by binding arbitration/mediation in accordance with the rules and regulations of the United Kingdom Intellectual Property Office applicable from time to time.
Last updated on the 08th Septemer 2023.
