These supplementary terms and conditions (hereinafter these “Supplementary Terms”) relate to the provision of Equipment and Equipment Maintenance (as defined below) that are supplemental to the Open GI Terms and Conditions for the Supply of Software and Services and the Open GI General Terms and Conditions (together, the “Agreement”).
In the event of any conflict or inconsistency between the Supplementary Terms and the documents that constitute the Agreement, the following order of priority shall be given:
(i) these Supplementary Terms;
(ii) the Open GI Terms and Conditions for the Supply of Software and Services; and
(iii) the Open GI General Terms and Conditions.
1. Definitions
In these Supplementary Terms the terms and expressions used shall have the same meaning as defined in the Agreement and as set out below:
Equipment
means hardware which is purchased through Open GI by the Client under the Agreement for use with the Software and/or Services.
Equipment Maintenance
means the Services provided by Open GI in respect of the Equipment.
2. Supply of Equipment
2.1. All Equipment purchased by the Client from Open GI shall be purchased in accordance with the Agreement.
2.2. Open GI makes no warranty in relation to the suitability or otherwise of the Equipment. The Client must rely on the terms of any warranty that may be provided by the manufacturer of the Equipment, and it shall be the responsibility of the Client to register the Equipment with the manufacturer following delivery in order to trigger any warranty.
2.3. The Client shall be responsible for compliance with all applicable export and import laws arising in relation to the Equipment.
2.4. Save where otherwise expressly provided in these Supplementary Terms, the Client is only entitled to return Equipment in accordance with the manufacturer’s terms.
2.5. Open GI reserves the right to make an improvement, substitution or modification in the specification of any element or part of the Equipment at any time provided that such improvement, substitution or modification will not materially worsen the performance of the Equipment.
2.6. The Equipment undergoes testing by the manufacturer before delivery. If the Client requires Open GI to carry out any additional testing, such testing shall be chargeable and invoiced to the Client at any time on or before completion of testing.
2.7. If Open GI, its subcontractors or its agent is prevented from delivering (and if contracted to do so, installing) Equipment at the time agreed with the Client due to acts or omissions of the Client’s, Open GI shall be entitled to pass on any increases in costs, charges and prices incurred, to the Client.
2.8. All drawings, descriptive weights, dimensions and the descriptions and illustrations contained in the pre-sales and sales literature describing Equipment are approximate only and shall not form part of the Agreement.
2.9. If, at the date of ordering any Equipment, a telecommunications carrier or manufacturer has approved the Equipment to be supplied, but subsequently requires Open GI to make any modifications or alterations to it, such modifications or alterations shall be carried out by Open GI at the Client’s cost calculated in accordance with Open GI’s then current and prevailing charges for such work.
3. Risk and Title
3.1. Risk in any Equipment to be supplied by Open GI under the Agreement shall pass to the Client on delivery to the Client’s premises. The Client shall insure such Equipment for its full replacement value whilst stored at the Client’s premises at least until title to the Equipment passes to the Client pursuant to clause 3.2 of these Supplementary Terms.
3.2. Title to Equipment supplied by Open GI shall pass to the Client when the Client has paid to Open GI in full all sums due and payable to Open GI in respect of such Equipment.
3.3. Where ownership of Equipment is to pass to the Client in accordance with clause 3.2 of these Supplementary Terms and until ownership passes, the Client shall hold the Equipment as bailee and fiduciary agent of Open GI, shall not move such Equipment from the Client’s premises without OpenGI’s prior written consent, shall keep in place all marks and indications of Open GI’s or the relevant manufacturer’s/licensor’s ownership, keep all of the Equipment properly stored, protected and insured (against the risks for which a prudent owner would insure them and hold the policy on trust for Open GI) and shall, if so required by Open GI, deal with them separately from other goods. The Client agrees to grant access to Open GI, its employees, its subcontractors and agents to enter the premises of the Client for the purposes of satisfying itself that such Equipment is stored separately and identified as the property of Open GI. Without prejudice to the foregoing conditions, the Client shall, subject to meeting all payment obligations, have the right to use the Equipment in the course of its business prior to title passing, but until ownership passes shall not have the right to re-sell, lease, hire, charge or otherwise dispose of it.
3.4. Until such time as the title in the Equipment passes to the Client, Open GI shall be entitled at any time to require the Client to return the Equipment to Open GI at the Client’s cost, and if the Client fails to do so forthwith, to enter any of the Client’s premises or any third party premises where the Equipment is stored and repossess the Equipment using reasonable force if necessary.
3.5. The Client shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Equipment which remains Open GI’s property, but if the Client does all monies owing by the Client to Open GI shall (without prejudice to any other right or remedy Open GI may have) forthwith become due and payable.
3.6. Until such time as the Client has paid Open GI all monies owing to Open GI for the Equipment, if the Client becomes bankrupt or insolvent, enters into any arrangement with its creditors, or being a company, goes into liquidation or is wound-up, or being a partnership, is dissolved or if, in Open GI’s reasonable opinion, one of the aforementioned events is likely to occur and Open GI notifies the Client of such belief in writing the Client will no longer be entitled to use and sell any of the Equipment which must be returned to Open GI immediately at the Client’s cost or Open GI shall be entitled to re-take possession in accordance with Clause 3.4 of these Supplementary Terms.
4. Equipment Maintenance
4.1. Where Equipment Maintenance is stated on the applicable Order Form and in consideration of the Client paying the Service Fees and, where applicable, the Client supplying to Open GI a detailed description of any fault requiring Equipment Maintenance, Open GI undertakes to use reasonable endeavours to provide the following Equipment Maintenance during Business Hours:
4.1.1. reasonable assistance in the resolution of queries concerning the Equipment via the Support Centre;
4.1.2. recommendations relevant to the course of action necessary to recover from a fault, error or failure emanating from the Equipment and its use;
4.1.3. preventative maintenance as deemed necessary by Open GI;
4.1.4. remedial maintenance to rectify failures in the Equipment.
4.2. The above maintenance service may take the form of the provision of repair (or, at the option of Open GI, replacement) of items or components of the Equipment. Open GI may remove equipment from the list of equipment that is supported under the Equipment Maintenance if, in Open GI’s reasonable opinion, the defective Equipment is beyond repair or is uneconomic to repair.
4.3. Unless otherwise stated in the Order Form, Equipment Maintenance shall be provided for an initial period of 12 months, during which the Client shall not be entitled to terminate the provision of the Equipment Maintenance. In any event, Equipment Maintenance shall expire as follows:
4.3.1. for Core servers: seven years from the date of supply of the Equipment;
4.3.2. For switches: three years from date of supply of the Equipment; and
4.3.3. for Bespoke servers, PCs, Monitors and other Equipment – five years from the date of supply of the Equipment.
4.4. Open GI does not warrant Equipment will be available for use whilst Equipment Maintenance is being undertaken.
4.5. The Equipment Maintenance shall not include, repair or maintenance arising out of:
4.5.1. the improper use, operation or neglect of either the Software, operating system or any Equipment;
4.5.2. the attachment of equipment other than Equipment supplied by Open GI or approved by Open GI;
4.5.3. the failure by the Client to implement recommendations in respect of or solutions to faults previously advised by Open GI;
4.5.4. the use of the Equipment by an individual who has not undergone training with Open GI to the required level or is not otherwise reasonably competent in the use of the Equipment;
4.5.5. a repair, adjustment, alteration or modification of Equipment (including the Core Back-Office Equipment which is proprietary Equipment that should only be maintained by Open GI) by anyone other than Open GI except with the prior written authority of Open GI;
4.5.6. the use of the Equipment for a purpose for which it was not designed (which includes use for in excess of 56 hours per week);
4.5.7. electrical work external to the Equipment or equipment not supplied by Open GI;
4.5.8. transportation or relocation of the Equipment not performed by a third party approved for the purpose by Open GI;
4.5.9. failure of electrical power, air conditioning, humidity or other environmental control;
4.5.10. operator error or omission or failure to follow normal operating procedures (including failure to maintain or replenish all routine maintenance or cleaning fluid materials and aids used or provided designed to keep the Equipment clean);
4.5.11. failure of telephone links; or
4.5.12. the use of consumables not recommended for use by manufacturers with their equipment.
4.6. Equipment Maintenance does not include the following:
4.6.1. cleaning, painting, refinishing or touching up of any Equipment;
4.6.2. repair of a malfunction due to electromagnetic or particle radiation in the environment of the supported Equipment;
4.6.3. diagnosis and/or rectification of problems arising from the operating environment;
4.6.4. repair of Equipment that can in the reasonable opinion of Open GI no longer be maintained in good working order (this includes, but is not limited to a third party ceasing to manufacture component parts or unavailability of such parts at reasonable cost);
4.6.5. the replacement of consumable items including without limitation decorative trims or cases, drums, fuser units, paper rolls, printer heads, printer ribbons, printer platens, toner and paper;
4.6.6. the repair of an item of equipment for which Open GI’s records indicates that maintenance is not included;
4.6.7. service other than at the Client’s premises (or such other location as Open GI shall have approved in writing);
4.6.8. any equipment supplied to the Client by a third party; or
4.6.9. remedial work resulting from deterioration in performance of Equipment, following the new release of Upgrades. Under no circumstances whatsoever will Open GI be liable to the Client for deterioration in speed of processing of Equipment.
4.7. All replacement parts provided under this Agreement will become the property of the Client and become part of the Equipment maintained. All replaced parts removed from the Equipment under this Agreement shall become the property of Open GI.
4.8. The Client shall provide all necessary consumables, programs, operating manuals and such other necessary facilities and services (including without limitation, computer runs, core dumps, printouts and data preparation) for Open GI in the provision by Open GI of Equipment Maintenance. The Client shall, if requested by Open GI, provide staff familiar with the Client’s computer programs and operations, who shall co-operate fully with Open GI’s personnel in the diagnosis of any malfunction of the maintained Equipment.
4.9. The services outside the scope of Equipment Maintenance set out in these Supplementary Terms can be provided to the Client, at Open GI’s sole discretion, as Professional Services.
4.10. If the Client uses equipment other than equipment approved or recommended by Open GI, Open GI may, at its sole discretion, attempt to provide Equipment Maintenance in respect of it but cannot guarantee the success of such services.
4.11. If the Client fails to or delays access to Equipment for Equipment Maintenance, Open GI will be entitled to charge the Client a charge in addition to the Service Fees for any time wasted by its employees.
4.12. If Open GI, its subcontractor or its agent attends the Client’s premises and finds that no error or fault exists in the Equipment that has been reported as faulty, Open GI reserves the right to charge Open GI’s on call hourly rate for the time spent in addition to the Service Fees.
4.13. If Open GI discovers that maintained Equipment cannot be fixed, because the Equipment is beyond repair or it is uneconomic to repair it, Open GI will give the Client three months’ notice in writing that the Equipment is to be taken off Equipment Maintenance and must be replaced by the Client’s at the Client’s cost. Open GI may, where practicable, loan to the Client, during that notice period, replacement equipment to assist the Client until the Client has replaced the Equipment being removed from Equipment Maintenance.
4.14. All requests for Equipment Maintenance must be logged with Open GI by contacting the dedicated Support Centre. The Client shall supply to Open GI a detailed description of any fault requiring attention. Support Centre is open during the Support Hours. Only one of the individuals previously notified to Open GI as having the authority to log requests for Support on behalf of the Client may contact the Support Centre for Support.
5. Product Specific Terms
5.1. Server Multiple Network Interfaces: The Server system will only support two separately presented network interfaces to the Core operating system. Successful implementation of this solution is subject to site survey.
5.2. Server Bonded Network Interfaces: It is recommended that, for high availability, separate network switches per NIC should be used. If a single switch is used, it must support IEEE 802.3ad Dynamic link aggregation. Successful implementation of this solution is subject to site survey.
5.3. PC Availability: Due to the constantly evolving nature of PC componentry, Open GI cannot guarantee to supply the precise specification detailed in an Order Form. However, Open GI guarantees to provide a device of at least a comparable level of performance to that described.
5.4. Monitor maintenance: Open GI does not offer on-site maintenance for monitors. Monitors will be subject to manufacturer warranty. Clients must register and action the warranty agreement directly with the manufacturer in order to rely on such warranty.
5.5. Wireless Access Points:
5.5.1. Wireless Access Points will be installed at Open GI’s discretion in sensible locations where both power and network connectivity is available. The Wireless Access Points will not be fixed to walls, floors or ceilings.
5.5.2. Open GI will not be responsible for installation of structured cabling for network or power supply to the Wireless Access Points. Should cabling be required then the Client will require services from a certified Electrician/Network Specialist.
5.5.3. In the event that all mobile devices are failing to connect to the internet, Open GI will perform checks to establish if the wireless access point is working.
5.5.4. In the event of the Open GI application not performing as expected on a mobile device, support will only investigate if the issue is replicable via a standard PC connection.
5.5.5. Open GI will not be responsible for “dropouts” of connectivity to devices that are mobile or when all devices are working except the reported.
5.5.6. Open GI will not be responsible for the connection or troubleshooting of mobile devices.
5.5.7. Adding devices to the Wireless network is the responsibility of the Client. Support will not be able to remote assist the Client with the configuration of Client-supplied wireless devices.
5.6. Cables and accessories: Provided without support or maintenance and subject to manufacturer’s warranty terms.
5.7. Levelling Feet / Casters: All server racks are supplied inclusive of levelling feet. (These are required in order to pass cables underneath the rack.) The Client may choose to upgrade their rack to include heavy-duty castors as an extra cost option. (Part NoVDK0212)
5.8. Server Cabinets: FSE installation services are mandatory with the purchase of server racking and accessories. Server cabinets are flat-packed / require assembly and will be delivered directly to the Client’s site from the manufacturer FSE installation covers assembly of the rack and included accessories. FSE installation specifically excludes any type of structured cabling services, mounting of equipment to the customer’s walls, drilling holes in the Client’s property or installation of any fixed power or network points. A suitable fixed power and network point must be provided by the Client at the planned installation location of the rack. PDUs include an input connect for connection to a compatible UPS device (not a standard 13A UK mains plug) Server Racks are delivered by wooden pallet, the Client will need to be able to accept delivery of this.
5.9. Sophos Access Points: Sophos access points are an add-on product and require a suitable Sophos XG Firewall solution, in order to be used. These devices do not function as a standalone access point.
5.10. Should replacement hardware be required to fix a fault, replacement hardware is ordered upon request from Open GI’s supplier / partner and is subject to external fulfilment timescales. In order to protect against downtime caused by the failure of a single device, an HA solution is recommended.
6. WEEE Directive
6.1. Open GI operates within a waste compliance scheme (B2B) for the equipment it produces. Upon notification by the end user for collection, Open GI will issue details of the nearest B2B call centre.
6.2. The Client may be asked to provide B2B an audit trail linking the equipment to be collected to the sale of new items. Where the audit trail fails to satisfy that link the equipment may be collected and disposed of on a chargeable basis. It is the Client’s responsibility to inform the call centre (B2B) of their collection requirements within 14 days of the equipment being replaced.
6.3. For the equipment distributed by Open GI the Client must approach the manufacturer directly for collection/disposal.