Rackservers.com Terms and Conditions (Including Maintenance Terms and Conditions)

Rackservers.com is a wholly owned subsidiary of Evolution Computer Ltd. and is a trading name only.
All invoices are generated by Evolution Computer Ltd.

All orders placed by a business customer with Evolution Computer Ltd. are subject to the following terms and conditions. Please read through them carefully and keep a copy for future reference. These terms and conditions and the display of products on our website do not constitute an offer and no contract is made until we have processed your order.

1. Introduction
1.1. These conditions only apply to business customers. If you are not a business customer you should refer to our terms and conditions for supply to consumers before making an order.
1.2 These conditions set out the entire basis upon which we provide Goods to you. In entering into a contract with us you acknowledge that no representations have been made to you by us except as are stated in these conditions.
1.3 This is an important document and affects your rights and obligations. It also includes exclusions and limitations that apply to you. Therefore, you should read these conditions before accepting them and submitting an order to us.
1.4 These conditions may not be supplemented, altered or modified unless agreed in writing with us.

2. Definitions
2.1 In these conditions unless the context otherwise requires the following terms shall have the following meanings:
(a) "Business Day" means Monday to Friday inclusive but excluding any public and bank holidays;
(b) "Evolution", "our", "we", "us" means Evolution Computer Ltd which is a company incorporated in England under number 4485741 and whose registered office is at Unit 9 Saxon Business Centre, Windsor Avenue, London, SW19 2RR (or our successors and assigns);
(c) "Goods" means the articles or things or any of them or any part or parts of them to be provided by us in accordance with these conditions;
(d) "you", "your" means the company or other business organisation on behalf of whom these conditions are accepted.
2.2 The headings in these conditions are for convenience only and shall not affect their interpretation.

3. Quotations and Orders
3.1 Quotations given by Evolution shall remain valid:
3.1.1 in the case of verbal quotations until the end of the next Business Day; and
3.1.2 in the case of written quotations for a period of 14 Business Days from the date of the quotation.
3.2 All orders are subject to availability.
3.3 In respect of any orders made by telephone, you will send us a written order in confirmation of that telephoned order duly marked with any confirmation reference given by us.
3.4 Any order submitted by you is not binding on us until we have despatched acceptance of it in writing.
3.5 If you order any Goods that are not in accordance with our standard specification you shall indemnify us against all claims made against us by any third party that the manufacture, sale, use or possession of the Goods infringes the intellectual property rights of any third party. We may require a deposit for such Goods. You may not in any circumstances cancel such an order or return such Goods.

4. Price
4.1 All our quoted prices are made on an ex works basis.
4.2 If we agree to deliver the Goods to your premises you will be liable to pay our charges for transport, packaging and insurance.
4.3 Prices are exclusive of any value added tax or other sales tax which shall be paid by you.

5. Payment
5.1 Unless otherwise agreed in writing by us, full payment for the Goods must be received by us before delivery takes place.
5.2 If we do allow you credit, our terms are strictly payment within thirty days from the date of our invoice.
5.3 The time of payment of the price shall be of the essence of the contract. If you fail to make any payment on the due date then, without prejudice to any other right or remedy available to us, we shall be entitled to:
5.3.1 cancel this or any other contract with you or suspend any further deliveries to you under such contract;
5.3.2 demand immediate payment of any other monies due from you to us under this or any other contract; and
5.3.3 charge you interest on any amount owing to us at the rate of 2% above Lloyds Bank PLC’s base rate from time to time calculated on a daily basis as well after as before judgment.

6. Delivery
6.1 Delivery dates are estimates only although we will endeavour to meet them.
6.2 If we fail to deliver on the estimated date you may contact us, or we shall contact you and specify a new date for delivery.

7. Risk and Property
7.1.1 If we deliver the Goods, risk shall pass on delivery to your premises.
7.1.2 If you collect the Goods, risk shall pass on your receipt of them at our premises.
7.2 Title in the Goods shall remain with us until all monies owed by you to us are actually received by us.
7.3 If payment in full is not made, we may require you to return the Goods immediately. If this requirement is not complied with we shall, without prejudice to any other right or remedy that may be available to us, be entitled at any time and without notice to retake possession of the whole or any part of the Goods and for that purpose to enter your premises and sever the Goods from anything they are attached to (without being responsible for any damage thereby caused).

8. Software
8.1 It is solely your responsibility to comply with any terms and conditions of any licence attaching to software supplied by us. You should be aware that failure to comply with such terms and conditions could result in you being refused a software licence or having it revoked by the proprietary owner.
8.2 All software delivered hereunder is supplied "as is" and our sole obligation in connection with the supply of software is to obtain and supply a correct version from the manufacturer concerned in the event such software fails to conform to its product description or proves in any other way to be defective PROVIDED ALWAYS that you notify us of any defect or non-conformance to product description within thirty days of the date of delivery of the applicable software.

9. Acceptance
9.1 You are required to inspect and test the Goods and notify us in writing of any defect found within 14 days of receiving the Goods.
9.2 If no such notice is received by us within 14 days of your receipt of the Goods you shall be deemed to have accepted them. If you reject the Goods because of a default in any third party products you shall not be entitled to any compensation, credit or refund in excess of that received by us under any guarantee or warranty given to us by the manufacturer or supplier of such third party products.

10. Warranty
10.1 We warrant that the Goods we manufacture will be free from defects caused by faulty materials or poor workmanship for:
10.1.1 a minimum period of one year from delivery;
10.1.2 an extended period when 2nd, 3rd or 4th year warranty or maintenance is purchased or expressly provided by us.
10.2 Under this warranty we will, at our option, either repair or give a replacement of equivalent quality or issue credit to you for any Goods which are defective because of faulty materials or poor workmanship provided that:
10.2.1 you notify us in writing within 14 days of you first discovering any such defects;
10.2.2 the Goods have been used in an appropriate manner and/or as prescribed in the operating instructions (if any);
10.2.3 the defective Goods are returned to us at your expense;
10.2.4 examination by us discloses to our satisfaction that such defects exist and have not been caused by misuse, neglect, accident, or improper storage installation or handling; and
10.2.5 you shall pay us the cost (as certified by us) of any examination of such Goods as a result of which we deny liability.
10.3 Maintenance services can be purchased directly from us.
10.4 We will not accept Goods for exchange, repair or return unless each item making up the Goods is accompanied by an RMA number from us.
10.5 In respect of third party products you shall only be entitled to the benefit of any warranty or guarantee given by the third party manufacturer.
10.6 In respect of all operating and applications software your only remedy shall be that as set out in the licence (if any).
10.7 If we agree to repair any Goods after the expiry of the agreed warranty period we may charge you for this. We warrant that any Goods that we do repair after the expiry of that period shall be free from defects caused by faulty materials or poor workmanship for a period of three months following the date of their return to you.
10.8 Except as expressly provided in these conditions all warranties, representations (unless fraudulent), conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.

11. On-Site maintenance (Optional to warranty)
11.1 On-site repair services are provided as an option to the standard warranty for all equipment.
The following applies to terms 1, 2, 3 & 4 years and response times of between 4 hours and next business day response. Working hours being between 9am and 6pm, Monday to Friday.
11.2 We will provide an engineer in the response time stated. In all instances we will endeavour to provide parts relating to the fault stated on a first time visit. In rare instances of an un-diagnosable problem (taken initially either via phone discussion or email), we will provide an engineer in the response time stated, however we reserve the right to not provide parts on a first time visit unless prior accurate or proper diagnosis has first taken place.
11.3 Under this warranty we will, at our option, give an exact replacement part or a part of equivalent quality/performance and full compatibility.
11.4 Force Majeure. Whilst we will always endeavour to respond and repair in the times stated, we cannot be made accountable for delays or repair issues which may be out of our control. These include: Parts availability (i.e. global shortages), replacement parts failure, extreme weather conditions leading to travel problems, vehicle accident en-route or delays en-route, such as breakdown of vehicle including traffic issues and/or Public transport delays.

12. Liability
12.1 We do not exclude any liability for death or personal injury caused by either our or our employees negligence.
12.2 We shall not be liable to you for any losses whether indirect, special, consequential losses, loss of business, profit or goodwill or loss of data.
12.3 We shall not be liable to you for the loss or damage to software programs during repair or upgrade of any Goods whether the same are under warranty or not.
12.4 We shall not be liable to you for any indirect, special or consequential losses, loss of business, profit or goodwill caused by ancillary products or services provided by us.
12.5 Subject to conditions 12.1, 12.2, 12.3 and 12.4, our total liability arising under or in connection with a contract with you shall be the greater of either the price of the Goods or £100,000.

13. Default, Cancellation And Re-Scheduling Of Deliveries
13.1 We may cancel or suspend any contract with you if we have reason to believe your circumstances or status has changed for any reason including, without limitation, bankruptcy or receivership, change of name, litigation by us or other parties.
13.2 If we do exercise our right to cancel or suspend a contract with you we shall be entitled to demand immediate settlement in full of all outstanding sums (including work in progress).
13.3 You may not cancel or re-schedule any order that has been accepted by us unless we have agreed to such a request in writing. If you cancel or re-schedule an order you may be liable to indemnify us against loss, costs, damages, charges and expenses, including credit card fees incurred by us as a result of such change.

14. Force Majeure (General)
We shall not be liable for the cancellation of any order or any unfulfilled part of it or for effecting partial delivery or performance if our performance is prevented or delayed whether directly or indirectly by any cause whatsoever beyond our reasonable control whether such cause existed or was foreseeable at the date of acceptance of your order by us or not.

15. Severability
If any provision of these conditions is held by a competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected.

16. Waiver
The waiver by us of any breach of any term shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.

17. Assignment
We may freely assign an order or a contract entered into pursuant to an order. You shall not assign or transfer your rights or obligations under such an order.

18. Export
Our performance of a contract with you is subject to the export laws and regulations of the United States of America and the European Union.

19. Notices
Any notice required or permitted to be given by either party to the other shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

20. Confidentiality
Each party undertakes to the other that it shall keep and procure that its employees and agents shall keep secret and confidential and not disclose to any third party any information or material of a confidential or business nature relating to the other (including information of a commercial value) received or obtained in connection with a contract between the parties unless such information or material is required by law to be disclosed or is in the public domain otherwise than by breach of this condition.

21. Jurisdiction
These conditions shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English Courts provided that we shall be entitled to issue proceedings against you in the courts of any jurisdiction in which you are incorporated or have established a place of business.

22. Third Parties
The provision of the Contracts (Rights of Third Parties) Act 1999 shall not apply to any contract between you and us.

23. Incentives
Evolution Computer Ltd runs an incentives scheme for customers and suppliers. For more information, please contact Evolution Computer Ltd - info@evol.co.uk