Terms and Conditions
1. Definitions
In these Terms and Conditions the following words and expressions shall have the following meanings:-
"the Agreement" means the agreement (of which these Terms and Conditions form part) between the Company and the Customer for the provision of the Services.
"the Company" means the company named as such overleaf.
"the Customer" means the customer named as such overleaf.
"Consideration" means the consideration specified overleaf payable by the Customer fur the provision of the Services.
“Normal Working Hours” means between the hours of 9.00 am and 5.30 p.m. (Greenwich Mean Time or British Summer Time whichever applies in England for the time being) Monday to Friday inclusive but excluding English Bank Holidays and Statutory Holidays.
“Working Day” means any period of 6 hours in any one period of Normal Working Hours.
“Representative” means an employee of the Company or any other person working under the direction of the Company.
“Services” means the services detailed overleaf.
“Site” means the site specified overleaf where the Services are to be provided.
1.2 A reference to a statutory provision shall be construed as including a reference to that provision as amended, consolidated or re-enacted (whether before or after the date of the Agreement).
2. Application of Terms
2.1 The signature of this Order Acknowledgement by the Company constitutes the acceptance of the offer made by the Customer to the Company and the Customer agrees that these Terms and Conditions are the only terms and conditions which regulate the Agreement.
2.2 These Terms and Conditions shall override all other terms and conditions inconsistent with it whether express, implied or otherwise, including but not limited to terms, conditions or stipulations contained in any order of the Customer or otherwise stipulated by the Customer and which are at variance with or additional to these Terms and Conditions.
2.3 Any attempt by the Customer to vary or amend these Terms and Conditions will not be binding on the Company unless the Company has agreed in writing to the variation or amendment.
3. Services
3.1 The Company shall provide the Customer with the Services for the Consideration and subject to these Terms and Conditions.
3.2 The Company shall provide appropriately experienced staff and for the number of days (if specified) detailed overleaf provided always that the Supplier reserves the right to determine the allocation of its personnel in providing the Services.
3.3 The Services provided on each Working Day will be for a core period of 6 hours in any one period of Normal Working Hours. The start time for the delivery of the Services on any Working Day will not be such as to require Representatives to set off for the Site earlier than 7am unless the Customer has agreed to pay accommodation expenses.
4. Customer’s Obligations
Accommodation and Information
4.1 The Customer shall at no cost to the Company:-
4.1.1 promptly provide all necessary communication and computer processing facilities and up to date computer equipment in safe working order and other appropriate media, including sufficient core and backing store, all operating software including compilers, utilities and test environment, application software and documentation or otherwise of whatever nature and such information regarding the activities and methods of the Customer as may reasonably be required by the Company for the purpose of providing the Services;
4.1.2 procure that there are made available to all Representatives when at the Site such office services as may be necessary for the performance of the Company’s obligations under this Agreement, including word processing, telephone, telecommunications and internet facilities;
4.1.3 ensure that its employees co-operate fully with all Representatives; and
4.1.4 promptly furnish the Representatives with such information and documents as they may reasonably request subject to such confidentiality obligations as the Customer may reasonably impose.
Health and Safety
4.2 The Customer shall take all reasonable precautions to ensure the health and safety of the Company’s employees, agents and other personnel whilst the same are at the Site or any other premises of the Customer in the fulfilment of the Company’s obligations under this Agreement.
4.3 The Company shall ensure that its Representatives observe the Customer’s safety rules and procedures (a copy of which will be provided by the Customer before the Company commences delivery of the Services) whilst they are on the Customer’s premises.
5. Intellectual Property Rights
5.1 The Customer acknowledges that any and all of the trademarks, trade names, copyright, patents and registered designs and any other intellectual property rights used or embodied in or in connection with the Services and any software are the sole property of the Company or such other person as may be identified. The Customer shall not at any time question or dispute the ownership by the Company or such other person of any such right.
5.2 The Company will indemnify the Customer against all losses sustained or incurred by the Customer in connection with any infringement or alleged infringement of the rights of third parties arising from the provision of the Services provided that:
5.2.1 the Customer shall not have done permitted or suffered to be done anything which may have been or become an infringement of the rights of any third party;
5.2.2 the Customer is not in material breach of this Agreement;
5.2.3 the Customer has notified the Company of any alleged infringement within 3 working days of first knowing or being aware of such allegation;
5.2.4 the Customer has made no admission of liability without the prior written consent of the Company; and
5.2.5 the Customer has permitted the Company (at the Company’s expense) to conduct any litigation and negotiations for settlement of the claim.
5.3 If the Customer fails to comply with the conditions in clause 5.2 the Customer shall indemnify the Company from and against all losses sustained or incurred by the Company which might have been avoided but for such failure.
5.4 The Company may defend or make settlement of any claims as referred to in clause 5.2 at its own discretion and the Customer shall give such assistance as the Company may reasonably require to defend or settle any such claims.
5.5 In the event that any such infringement occurs or may occur the Company may at its sole option and expense take such steps as it sees fit to prevent or bring to an end such infringement.
6. Confidentiality
6.1 The documentation and all other information, ideas, concepts, methods and processes, data, drawings, specifications, software listings, source or object codes and any associated computer produced output which the Company may supply to the Customer relating to or in connection with the Services are proprietary and confidential to the Company. The Customer hereby agrees that it shall use the same solely in accordance with the purposes of the Agreement and the provisions of these Terms and Conditions and that it shall not at any time during or after completion or expiry of the Agreement disclose them, whether directly or indirectly, to any third party.
6.2 Each party shall treat as confidential all information, data, software, documentation, ideas, concepts, method and processes and other material of the other party disclosed by or received from the other party and shall not without the other party’s prior written consent disclose any of them to any third party.
6.3 The restrictions in clauses 6.1 and 6.2 shall not apply to:
6.3.1 items which were already in the possession of the party concerned before disclosure (except as a result of a breach of the Agreement);
6.3.2 items obtained from another source which is free to disclose the same; or
6.3.3 items which are in the public domain (except as a result of a breach of the Agreement).
6.4 The Company shall be entitled to make reference in its advertising or publicity material to the fact that the Customer is a customer of the Company.
7. Warranty
7.1 The Company warrants that the Services will be provided with reasonable care and skill.
7.2 If it breaches the warranty given in clause 7.1 the Company shall at its option:
7.2.1 repeat performance of the part of Services found not to conform to the warranty; or
7.2.2 refund the relevant proportion of the Charges paid by the Customer attributable to the part of the Services found not to conform to the warranty.
7.3 The liability of the Company in relation to any breach of a warranty given in clause 7.1 shall not in aggregate exceed [£10,000 or 25% of the Consideration (whichever is the lesser) OR 125% (one hundred and twenty five percent) of the Consideration].
7.4 The warranties in clause 7.1 are conditional upon:
7.4.1 the Customer giving written notice to the Company in accordance with clause 15 of any alleged breach of any warranty within 30 days of the date when the Customer discovers or ought to have discovered the alleged breach;
7.4.2 the Customer affording the Company reasonable opportunity to investigate the failure in the provision of the Services; and
7.4.3 the Customer not having committed any breach of its obligations under this Agreement which has led or contributed to the breach of warranty concerned.
7.5 As between the parties any statement, condition or warranty, express or implied, statutory or otherwise, as to the Services (other than as provided for in clause 7.1) is, in so far as the law allows, excluded.
8. Liability and Indemnity
8.1 Each party shall indemnify and keep indemnified the other against death of or injury to any persons which may arise out of the act default or negligence of the indemnifying party, its employees or agents in performance of its obligations under these Terms and Conditions and against all claims, demands, proceedings, damages, costs and expenses whatsoever in respect thereof or in relation thereto, provided that the indemnifying party shall not be liable for, nor shall it be required to indemnify the other party against, any compensation or damages for or with respect to death of or injury to persons to the extent that such death or injury results from the act, default or negligence of that party, its employees or contractors.
8.2 Each party shall insure with a reputable insurance company against its liabilities under this clause.
8.3 The Company does not exclude liability for direct physical damage to the Customer's property to the extent that it arises from the negligence of the Company or its representatives save that the Company will only be liable in respect of any one event or series of events up to a maximum of £2,000,000.
8.4 Other than as specified in clause 7.1 the Company shall not be liable to the Customer for any direct loss or damage howsoever which may be suffered by the Customer in respect of any breach of this Agreement or any representation or tortious act or omission (including negligence and breach of statutory duty) arising under or in connection with the Agreement.
8.5 The Company expressly excludes liability for consequential loss or damage of any kind including, but not limited to, loss of profits, loss of business revenue, loss of goodwill and loss of data howsoever arising which may be suffered by the Customer in respect of any breach of this Agreement or any representation or tortious act or omission (including negligence and breach of statutory duty) arising under or in connection with the Agreement.
8.6 In the event that any limitation or provision contained in these Terms and Conditions shall be held to be invalid for any reason and the Company becomes liable for loss or damage that would otherwise have been lawful to exclude the aggregate liability of the Company for any one event or series of events shall be limited to 125% (one hundred and twenty five percent) of the Consideration.
8.7 The parties have entered into the Agreement in the knowledge that the liability of the Company is to be limited in accordance with these terms and conditions and the charges have been agreed accordingly The Customer acknowledges that a higher price would be payable but for such limitations.
9. Force Majeure
Neither party shall be liable for any delay in performing any of its obligations under this Agreement if such delay is caused by circumstances beyond its reasonable control and such party shall be entitled to such extension of time (not exceeding three months) as is reasonable in such circumstances. If either party is unable to perform its obligations because of such circumstances for a consecutive period of more than three months the other party may terminate this Agreement by notice in writing and the provisions of clauses 11.3, 11.4 and 11.5 shall apply.
10. Consideration
10.1 The Customer shall pay the Company the Consideration for the Services in accordance with this clause.
10.2 Where the Consideration is expressed as an amount chargeable per Working Day. A minimum charge of one half of that amount will be charged for each part of a day on which any Services are performed.
10.3 No Services shall be performed outside normal working hours unless agreed in writing in advance with the Company. The consideration for such Services will be separately agreed but otherwise the terms hereof shall apply to such Services.
10.4 The Company's reasonable travelling, subsistence and (where agreed) accommodation expenses incurred in providing the Services to the Customer will be charged separately and shall be due and payable within 30 days of the date of the Company's invoice.
10.5 Payment Terms: All charges are due and payable no later than 30 days from the date of invoice, except training which is due and payable in full prior to the commencement date of the training course. Business Consultancy services are provided at a fixed daily rate as stated overleaf. However, any indication of the number of days required is an estimate only. The Consideration is payable in the currency specified overleaf net of all bank charges and commissions. No sum shall be regarded as paid until the date of actual receipt of cleared funds by the Company or its bankers.
10.6 The consideration is exclusive of and net of any taxes, duties or such other additional sums including but without prejudice to the foregoing generality, Value Added Tax, excise tax, (tax on sales, property or use) withholding tax, import or other duties and whether levied in respect of the Agreement, the Services or otherwise.
10.7 The Company will render to the Customer weekly an invoice showing the amount due in respect of the Services provided during the week. Any dispute or query relating to any invoice must be made by the Customer to the Company in writing within 7 days of the date of such invoice, otherwise the invoice will be treated as being accepted by the Customer. The Customer shall pay to the Company the full amount shown on the sales invoice within 30 days of the date thereof.
10.8 If any charge is not paid by the Customer by the due date the Company reserves the right to charge on the outstanding charge until payment at the rate of 4% over the current base rate of Lloyds TSB Bank PLC.
11. Commencement and Termination
11.1 The Agreement shall be deemed to commence on the date shown overleaf and shall continue for the period shown overleaf (if any) or until the Services are completed.
11.2 The Agreement may be terminated:-
11.2.1 forthwith by either party if the other commits any material breach of any term of these Terms and Conditions and which (in the case of a breach capable of being remedied) shall not have been remedied within 15 days of a written request to remedy the same;
11.2.2 forthwith by the Company if any charge is not paid by the Customer by the due date;
11.2.3 forthwith by the Company if the Customer being a body corporate shall present a petition or have a petition presented by a creditor for its winding up or shall convene a meeting to pass a Resolution for the voluntary winding up or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation) shall call a meeting of its creditors or shall have a Receiver of all or any of its undertakings or assets appointed or shall be deemed by virtue of Section 123 of the Insolvency Act 1986 to be unable to pay its debts.
11.3 On termination the Customer shall pay to the Company all costs and expenses including legal and other fees incurred and all arrears of fees charges or other payments arising pursuant to the Agreement or otherwise.
11.4 Within l0 days of the termination of the Agreement the Customer shall destroy all documentation and all copies and parts thereof supplied to the Customer by the Company in connection with the Services and a duly authorised officer of the Customer shall verify in writing to the Company that the Customer has complied with such obligations.
11.5 The completion, expiry or termination of the Agreement shall be without prejudice to the rights of the parties accrued up to the date of such completion, expiry or termination.
12. Non-Solicitation of Staff
12.1 The Customer shall not without the prior written consent of the Company at any time during the continuance of or within 12 months after the date of expiry, completion or termination of this Agreement employ, utilise the services of, solicit or endeavour to entice away from or discourage from being employed by the Company any person who is or shall at any time between the date of the Agreement and the date of such expiry, completion or termination be, a Representative whose duties have included the provision of any Services during the period of twelve months prior to such employment, utilisation, solicitation or endeavour.
12.2 The Customer agrees that if it is in breach of this clause damages may not be an adequate remedy and the Company may wish to apply for an injunction or other form of interlocutory relief or to take other action. Nevertheless the Customer shall, if in breach of this clause, pay on demand to the Company (as is agreed to be a genuine pre-estimate of the loss likely to be suffered by the Company as a result) a sum representing the gross amount paid to that Representative during the last 6 months immediately prior to such employment, utilisation, solicitation or endeavour (other than travelling or subsistence) plus the costs incurred by the Company in recruiting a suitable replacement but without prejudice to the other rights and remedies of the Company pursuant to this Agreement.
12.3 The Customer will procure the observance of the provisions of clause 12.1 by its subsidiaries, holding companies, associated companies and agents as if they were a party to the Agreement and shall be liable for the acts of such subsidiaries, holding companies, associated companies and agents as if they were the acts of the Customer.
13. Waiver
Failure or neglect by the Company to enforce at any time any of the provisions hereof shall not be construed as, nor shall it be deemed to be, a waiver of the Company's rights hereunder nor in any way affect the validity of the whole or any part of these Terms and Conditions nor prejudice the Company's rights to take subsequent action.
14. Data Protection Act 1998
The Customer shall indemnify the Company against all claims demands, proceedings, damages costs and expenses incurred or suffered by the Company in any way as a result of the Customer's breach of any provision of the Data Protection Act 1998.
15. Notices
Any notice required or permitted under the terms of the Agreement or otherwise required shall be in writing and shall be delivered in person sent by first class mail or air mail as appropriate properly posted and fully prepaid in an envelope properly addressed or sent by fax to the Managing Director (or equivalent officer) of the party to whom the notice is being given at the address or fax number as stated in these Terms and Conditions and shall be deemed to have been given three Working Days after the same shall have been posted or 48 hours after the same shall have been sent by fax until the contrary has been proved.
16. Severability
In the event that any or any part of any term, of the Agreement (whether or not forming part of these Terms and Conditions) shall be determined invalid, unlawful or unenforceable to any extent then such term, or such part thereof shall be severed from the remaining terms of the Agreement which shall continue to be valid and enforceable to the fullest extent permitted by law.
17. Whole Agreement
The Company shall not be liable to the Customer for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of the Agreement other than those confirmed by a Director of the Company in writing and expressly incorporated and referred to in the Agreement and these Terms and Conditions together with any provisions listed or expressly referred to overleaf constitutes the whole agreement between the parties with respect to its subject matter.
18. Law and Arbitration
18.1 The parties hereby agree that the Agreement and these Terms and Conditions shall be construed in accordance with English Law.
18.2 Any dispute or difference between the parties in connection with the Agreement or the Services shall be referred to and determined by a sole arbitrator to be appointed by agreement between the parties or in default of such agreement by the President for the time being of the British Computer Society.
19. Assignment
The Agreement may not be assigned or transferred in any way by the Customer without the Company's prior written consent.
