Terms and Conditions

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1 Definitions:

1. Business Day: a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.

2. Change Order: has the meaning given in 6.1.

3. Commencement Date: has the meaning given in 2.2.

4. Conditions: these terms and conditions.

5. Contract: the contract between the Customer and the Supplier for the supply of the Services in accordance with these Conditions.

6. Customer: see Order.

7. Customer Materials: has the meaning set out in e 3.2(f).

8. Deliverables: all documents developed by the Supplier as part of or in relation to the Services in any form or media, including drawings, data, specifications, and reports.

9. Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

10. Order: the order for the supply of Services as set out in the Supplier’s quotation and/or foregoing presentation delivered to the Customer and as attached to these Conditions.

11. Services: the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.

12. Service Specification: the description or specification for Services set out in the Order.

13. Supplier: the person or firm from whom the Customer purchases the Services.

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its personal representatives, successors and permitted assigns.

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d) A reference to writing or written includes fax and email.

2. Basis of contract

The Order constitutes an offer by the Customer to purchase the Services from the Supplier in accordance with these Conditions.

2.1 The Order shall be deemed to be accepted on the earlier of:

(a) the Supplier issuing written acceptance of the Order; or

(b) any act by the Supplier consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (Commencement Date).

3. Supply of Services

3.1 The Supplier shall, using reasonable skill and care, from the date set out in the Order and for the duration of the Contract supply the Services to the Customer in accordance with the terms of the Contract.

3.2 In providing the Services, the Supplier shall:

(a) co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;

(b) perform the Services with reasonable care and skill in accordance with good practice in the Supplier’s industry, profession, or trade;

(c) use reasonable skill and care to observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises;

(d) hold all data supplied by the Customer to the Supplier (Customer Materials) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorisation.

4. Customer remedies

4.1 If the Supplier fails to perform the Services by the applicable date, the Customer shall, without limiting or affecting other rights or remedies available to it, be able to recover from the Supplier any actual costs incurred by the Customer in obtaining substitute services from a third party;

4.1 The Customer’s rights and remedies under the Contract are exhaustive of, any rights and remedies implied by statute and common law.

5. Customer’s obligations

5.1 The Customer shall:

(a) provide the Supplier with access at reasonable times to the Customer’s premises for the purpose of providing the Services;

(b) provide in a timely manner and at no charge such all documents, information, items, and materials in any form (whether owned by the Customer or third party) required for the provision of the Services as the Supplier may reasonably request and ensure that they are accurate and complete;

(c) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, including, the use of all Customer Materials before the date on which the Services are to start;

(d) provide all assistance as set out and/or referred to in the Order; and

(e) not, without the prior written consent of the Supplier, at any time from the date of this Contract to the expiry of 24 months after the termination or expiry of this Contract, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant, or subcontractor of the Supplier in the provision of the Services. Any consent given by the Supplier in accordance with se 5.1(e) shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.

6. Change

6.1 Either party may propose changes to the scope or execution of the Services, but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:

(a) the Services;

(b) the Supplier’s existing charges;

(c) the timetable of the Services; and

(d) any of the terms of this Contract.

6.2 If the Supplier wishes to make a change to the Services, it shall provide a draft Change Order to the Customer.

6.3 If the Customer wishes to make a change to the Services:

(a) it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and

(b) the Supplier shall, as soon as reasonably practicable after receiving the information at 6.3(a), provide a draft Change Order to the Customer.

6.4 If the parties:

(a) agree to a Change Order, they shall sign it and that Change Order shall amend this Contract; or

(b) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure.

6.5 The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to 6.3 on a time and materials basis at the Supplier’s daily rates.

7. Charges and payment

7.1 The charges for the Services shall be set out in the Order.

7.2 In consideration of the supply of Services by the Supplier, the Customer shall pay the invoiced amounts within 14 days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.

7.3 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

7.4 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.

8. Intellectual property rights

8.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Customer Materials) shall be owned by the Supplier.

8.2 Subject to receipt of sums due to the Supplier, under this Order, the Supplier grants to the Customer, non-exclusive, and revocable licence to copy and modify the Deliverables (excluding Customer Materials) for the purpose of receiving and using the Services and the Deliverables. The Supplier shall not be liable for the consequences of any use of the Deliverables for any purpose which is inconsistent with that for which it was prepared by the Supplier and any consequences of any modification carried out.

8.3 The Supplier acknowledges that all rights in the Customer Materials are and shall remain the exclusive property of the Customer. The Customer acknowledges that all rights in any software provided by the Supplier or any outputs or Deliverables arising from such software shall remain the exclusive property of the Supplier.

8.4 This clause 8 shall survive termination of the Contract.

9. Insurance

9.1 During the term of the Contract and for a period of 6 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

10. Confidentiality

10.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by 10.2.

10.2 Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors, or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors, or advisers to whom it discloses the other party’s confidential information comply with this 10; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11. Compliance with relevant laws and policies

11.1 In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations, and codes from time to time in force.

12. Termination

12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Contract is in jeopardy.

13. Consequences of termination

13.1 Termination or expiry of the Contract shall not affect the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

13.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

14. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate the Contract by giving 30 days written notice to the affected party.

15. General

15.1 Assignment and other dealings.

Neither party shall assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the other party.

15.2 Subcontracting. The Supplier may subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Customer.

15.3 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the address specified in the Order.

(b) Any notice or communication shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this 15.3(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

15.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract. If any provision of the Contract is deemed deleted under this 15.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

15.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15.6 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

15.7 Liability

(a) Subject to clause 15.7(b) (liabilities which cannot legally be limited), the Supplier’s total liability to the Customer for all or any loss or damage arising from or in connection with a breach of contract or breach of statutory duty or any negligence shall not exceed the total sums paid for the Services by the Customer.

(b) Nothing in this Contract limits any liability which cannot legally be limited, including liability for:

(i) death or personal injury caused by negligence;

(ii) fraud or fraudulent misrepresentation

(c) The Supplier’s liability under the Order shall come to an end 24 months from the date of the Order.

(d) Subject to clause 15.7 (b) (liabilities which cannot legally be limited), the Supplier shall not be liable for the following types of losses:

(i) loss of profits;

(ii) loss of sales or business;

(iii) loss of agreements or contracts;

(iv) loss of anticipated savings;

(v) loss of use or corruption of software, data, or information;

(vi) loss of or damage to goodwill; and indirect or consequential loss.

15.8 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

15.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

15.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.