Terms and conditions
AFFINITY IT SERVICES LIMITED
TERMS AND CONDITIONS FOR THE SUPPLY OF TELECOMS\I.T. SERVICES AND SOLUTIONS
1. DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions (“Conditions”), the following words and expressions shall (unless the context otherwise requires) bear the following meanings:
“Contract” the Customer’s order for the Services and the Supplier’s acceptance of it in accordance with clause 3.2 below;
“Customer” the person, firm or company who purchases Services from the Supplier;
“Customer’s Project Manager” the Customer’s manager for the Project appointed in accordance with clause 5.1.1 below;
“Deliverables” all products and materials to be developed in any media by the Supplier for the Customer as part of and/or in connection with the Project, including (without limitation) data, diagrams, reports, software and specifications, and any Pre-Existing Materials to be procured for the Customer and/or supplied to the Customer by the Supplier as part of and/or in connection with the Project;
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Pre-Existing Materials” any data, diagrams, equipment, hardware, reports, software, specifications, tools and other materials in existence prior to the commencement of the Project;
“Project” the project described in the Project Specification;
“Project Milestone” A date by which a part of the Project is estimated to be completed, as set out in the Project Plan;
“Project Plan” the estimated timescale (including any Project Milestones) for the provision of the Services by the Supplier in accordance with the Contract, as set out in the Project Specification;
“Project Specification” the detailed specification for the Project describing the Services to be provided by the Supplier under the Contract (and any applicable service levels) and setting out the basis upon which the Supplier will charge for such Services, the applicable rates and/or fixed prices for the provision of such Services by the Supplier and the Project Plan (if any), as set out in the Contract, as attached to the Contract and forming part of it or as agreed with and delivered to the Customer and, on such agreement, to be attached to the Contract and form part of it;
“Services” the consultancy and information technologyrelated services to be provided by the Supplier as part of and/or in connection with the Project;
“Supplier” Affinity IT Services Limited whose registered number is 05760178 and whose registered office is at Unit 24 President Buildings, Savile Street East, Sheffield, S4 7UQ;
“Supplier’s Project Manager” the Supplier’s manager for the Project appointed in accordance with clause 4.3 below; and
“VAT” value added tax chargeable under English law for the time being and any similar additional tax.
1.2 The headings in these Conditions are inserted only for convenience and shall not affect its construction.
1.3 Reference to any statute or statutory provision includes a reference to the statute or statutory provisions as from time to time amended, extended or re-enacted.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
2.1.1 apply to, be incorporated in and govern the Contract; and
2.1.2 prevail over any inconsistent terms or conditions attached to, contained in, enclosed with or referred to in the Customer’s acceptance of a valid quotation, order, confirmation of order or specification, or implied by law, trade custom, practice or course of dealing. No terms and conditions of the Customer that are attached to, contained in, enclosed with or referred to in the Customer’s acceptance of a valid quotation, order, confirmation of order or specification shall in any way govern the Contract.
2.2 Any variation of the Contract must be in writing and signed by or on behalf of the parties.
3. BASIS OF SALE
3.1 Any official quotation given to the Customer by the Supplier for the supply of any Services:
3.1.1 is valid for a period of 7 days only, provided that the Supplier may withdraw it at any time by giving notice to the Customer;
3.1.2 is given subject to these Conditions; and
3.1.3 does not constitute an offer to sell or supply.
3.2 Each order by the Customer or acceptance by the Customer of a valid quotation given to the Customer by the Supplier for the supply of any Services shall constitute an offer by the Customer to purchase such Services on these Conditions. Accordingly, the issuance by the Supplier to the Customer of a written acknowledgement of the Customer’s order or acceptance of a valid quotation, the execution and return to the Customer of the acknowledgement copy of the Customer’s order form by the Supplier or the Supplier’s commencement or execution of work pursuant to the Customer’s order or acceptance of a valid quotation (whichever occurs earliest) shall establish a contract for the supply and purchase of those Services on these Conditions.
3.3 The Customer is solely responsible for ensuring that any order by the Customer for the supply of any Services is accurate and complete and the Supplier shall be in no way responsible or liable for the inaccuracy or incompleteness of any order.
3.4 No order or acceptance of a valid quotation by the Customer that has been accepted by the Supplier in accordance with clause 3.2 above may be cancelled by the Customer except with the agreement in writing of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), damages, costs (including the cost of all labour and materials used), charges and expenses incurred by the Supplier as a result of such cancellation.
3.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4. SUPPLIER’S OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Project Specification.
4.2 The Supplier shall use reasonable endeavours to meet the performance dates (including any Project Milestones) specified in the Project Plan but any such dates shall be estimates only and time shall not be of the essence of the Contract.
4.3 The Supplier shall appoint the Supplier’s Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Project. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s Project Manager throughout the Project but the Supplier has the right to replace any such person from time to time where reasonably necessary in the interests of the Supplier’s business.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
5.1.1 co-operate with the Supplier in all matters relating to the Project and appoint the Customer’s Project Manager who shall have the authority to contractually bind the Customer on all matters relating to the Project;
5.1.2 provide, upon the Supplier’s request and in a timely manner, such access to the Customer’s premises and data, and such office accommodation and other facilities, as the Supplier may require to fulfil its obligations under the Contract;
5.1.3 provide, upon the Supplier’s request and in a timely manner, such information as the Supplier may require to fulfil its obligations under the Contract, and ensure that such information is accurate in all material respects; and
5.1.4 be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.
5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s employees, agents or sub-contractors, the Customer shall be liable to pay to the Supplier on demand all direct, indirect and consequential losses, damages, costs, charges and expenses sustained or incurred by it (including, without limitation, any loss of profit, loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such losses, damages, costs, charges and expenses to the Customer in writing.
5.3 Except with the prior written consent of the Supplier, the Customer shall not at any time during the period from the date of the Contract to the date 12 months after the completion of the Services solicit or entice away from the Supplier or employ or attempt to employ any employee, agent or subcontractor of the Supplier who is, or has been, engaged or involved in supplying any Services to the Customer at any time during that period.
5.4 Any consent given by the Supplier in accordance with clause 5.3 above shall be subject to the Customer paying to the Supplier a sum equivalent to 25% of the then current annual remuneration of the relevant employee, agent or sub-contractor of the Supplier or, if higher, 25% of the annual remuneration to be paid by the Customer to the said employee or subcontractor.
6. CHANGE CONTROL
6.1 The Customer’s Project Manager and the Supplier’s Project Manager shall meet at mutually agreed times during the Contract period to discuss matters relating to the Project. Subject to clause 3.5 above, if either party wishes to change the scope or execution of the Services or any part(s) of the Project Specification, it shall submit details of the requested change to the other party in writing and the Supplier shall, within a reasonable time of such submission, provide a written estimate to the Customer of:
6.1.1 the likely time required to implement the change;
6.1.2 any variations to the Supplier’s charges arising from the change;
6.1.3 the likely effect of the change on the Project Specification; and
6.1.4 any other impact of the change on the terms of the Contract.
6.2 If the Supplier requests a change to the scope or execution of the Services or any part(s) of the Project Specification under clause 6.1 above, the Customer shall not unreasonably withhold or delay consent to it.
6.3 If the Customer wishes the Supplier to proceed, or consents to the Supplier proceeding, with any change to the scope or execution of the Services or any part(s) of the Project Specification requested under clause 6.1 above, the Supplier has no obligation to do so unless and until the parties have agreed in writing upon the necessary variations to its charges, the Project Specification and/or any other relevant terms of the Contract to take account of the change.
7. CHARGES AND PAYMENT
7.1 Clause 7.2 below shall apply if Services are to be provided on a time-andmaterials basis. Clauses 7.3 and 7.4 below shall apply if Services are to be provided for a fixed price. The remainder of this clause 7 shall apply in either case.
7.2 Where Services are to be provided on a time-and-materials basis:
7.2.1 the charges payable for the Services shall be calculated in accordance with the corresponding rate(s) set out in the Project Specification or the Supplier’s corresponding standard daily fee rate(s) as amended from time to time (as applicable);
7.2.2 the Supplier’s standard daily fee rates are calculated on the basis of an eight-hour day worked between 9:00am and 5:00pm on weekdays (excluding weekends and public holidays in England);
7.2.3 the Supplier shall be entitled to charge on a pro-rata basis at an overtime rate of up to 100% of the normal rate for part days and for time worked by members of the Project team outside the hours referred to in the Project Specification or clause 7.2.2 above (as applicable);
7.2.4 the Supplier shall ensure that all members of the Project team complete time sheets recording time spent on the Project, and the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in clause 7.2.5 below; and
7.2.5 the Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where applicable) for the month concerned, calculated as provided in this clause 7. Each invoice shall be accompanied by a supporting timesheet identifying time spent by each member of the project team and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.
7.3 Where Services are to be provided for a fixed price, the total price payable for the Services shall be the amount set out in the Project Specification. The total price shall be paid to the Supplier (without deduction or set-off) in instalments as set out in the Project Specification upon its achieving the corresponding Project Milestone. On achieving a Project Milestone, the Supplier shall invoice the Customer for the charges that are then payable, together with expenses and the costs of materials (and VAT where applicable), calculated as provided in clause 7.4 below.
7.4 Any fixed price contained in the Project Specification excludes:
7.4.1 the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier at cost; and
7.4.2 any applicable VAT, which the Supplier shall add to its invoices at the appropriate rate.
7.5 The Customer shall:
7.5.1 pay 50% of the invoice value on delivery of hardware and/or software.
7.5.2 pay in full and in cleared funds within 30 days of receipt each invoice submitted to it by the Supplier.
7.6 Without prejudice to any other right or remedy, if the Customer fails to pay the Supplier on the due date the Supplier reserves the right to:
7.6.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate of the Bank of England, calculated from the date when payment becomes due up to and including the date of actual payment, whether before or after judgement; and
7.6.2 suspend any or all Services to be supplied to the Customer under the relevant Contract and/or any other Contract with the Customer until payment has been made in full and cleared funds.
7.7 Time for payment shall be of the essence of the Contract.
7.8 All payments payable to the Supplier under the Contract shall become due immediately on its termination. This clause 7.8 is without prejudice to any right for the Supplier to claim for interest under the Contract or at law.
7.9 The Supplier may, without prejudice to any other rights and remedies it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Except in respect of Pre-Existing Materials of third parties in which ownership of the Intellectual Property Rights and other rights remains vested in such third parties, all Intellectual Property Rights and other rights in the Deliverables are owned or shall be owned by the Supplier. The Supplier hereby licenses all such Intellectual Property Rights and other rights to the Customer free of charge and on a non-exclusive, nontransferable, royalty-free basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as envisaged by the parties. If the Supplier terminates the Contract under clause 11.1 below, this licence will automatically terminate.
8.2 The Customer acknowledges that the Customer’s use of any Intellectual Property Rights and/or other rights in Pre-Existing Materials of third parties in which ownership of the Intellectual Property Rights and other rights remains vested in such third parties is conditional upon the Supplier obtaining a written end-user licence (or sub-licence) of such Intellectual Property Rights and/or other rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such Intellectual Property Rights and/or other rights to the Customer.
9. CONFIDENTIALITY AND SUPPLIER’S PROPERTY
9.1 The Customer shall keep in strict confidence:
9.1.1 all technical or commercial know-how, initiatives, inventions, processes or specifications which are of a confidential nature and have been disclosed to the Customer by the Supplier or its employees, agents or sub-contractors; and
9.1.2 any other confidential information concerning the Supplier’s business or its products that the Customer may obtain.
The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to the Supplier and shall ensure that all such employees, agents and subcontractors are subject to obligations of confidentiality corresponding to those that bind the Customer under this clause 9.1.
9.2 Any and all data, diagrams, equipment, hardware, reports, software, specifications, tools and other materials of the Supplier that are supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier but:
9.2.1 shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier; and
9.2.2 shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
9.3 This clause 9 shall survive termination of the Contract howsoever arising.
10. LIMITATION OF LIABILITY
10.1 This clause 10 set out the entire liability of the Supplier (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
10.1.1 any breach of the Contract;
10.1.2 any use made by the Customer of the Services, the Deliverables or any part of them; and
10.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Conditions excludes the liability of the Supplier:
10.3.1 for death or personal injury caused by the Supplier’s negligence; or
10.3.2 for fraud or fraudulent misrepresentation.
10.4 Subject to clauses 10.2 and 10.3 above:
10.4.1 the Supplier shall not be liable for any loss of profits, loss of business, loss of contracts, loss of revenue, depletion of goodwill, loss of anticipated savings and/or similar losses or pure economic loss or for any special, indirect or consequential losses, damages, costs, charges or expenses howsoever arising; and
10.4.2 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the higher of: (i) the price paid for the Services; or (ii) the proceeds received by the Manufacturer under its professional indemnity policy (or other relevant insurance policy) in respect of the liability in question.
11.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
11.1.1 the other party commits a material breach of any Conditions or other terms or conditions of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
11.1.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party;
11.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
11.1.4 a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
11.1.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt;
11.1.6 the other party ceases, or threatens to cease, to trade; or
11.1.7 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.2 Termination of the Contract, howsoever arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any terms or conditions of the Contract expressly stated to survive or implicitly surviving termination.
12. FORCE MAJEURE
12.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
13.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
13.2 Unless otherwise specifically provided in the Contract, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.1 If any term or condition of the Contract (or part thereof) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other terms or conditions of the Contract will remain in force.
14.2 If any invalid, unenforceable or illegal term or condition of the Contract would be valid, enforceable or legal if some part of it were modified, that term or condition will apply with whatever modification is necessary to make it valid, enforceable and legal and to give effect to the commercial intention of the parties.
15. STATUS OF PRE-CONTRACTUAL STATEMENTS
15.1 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract other than as expressly set out in the Contract.
16.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
17. NO PARTNERSHIP OR AGENCY
17.1 Nothing in the Contract is intended to or shall operate to create a partnership, joint venture or relationship of employer and employee between the parties or to authorise either party to act as agent for the other party, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other party in any way, including (without limitation) the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power.
18. THIRD PARTY RIGHTS
18.1 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
19.1 Any notice under the Contract must be in writing and must be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Contract or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in the Contract. A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in business hours, at 9:00am on the first business day following delivery). A correctly addressed notice sent by pre-paid firstclass post or recorded delivery post will be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax will be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
20. GOVERNING LAW AND JURISDICTION
20.1 The Contract and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the laws of England.
20.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.