1.1 In these terms and conditions the following definitions apply:
of a party means any entity which directly or indirectly owns or controls, is directly or indirectly owned or controlled by, or is in common ownership or control with, that party;
means a day other than Saturday, Sunday and public holidays when clearing banks generally are open for business in London;
means the date on which provision of the Services shall commence as specified in the Order;
means any commercial, financial or technical information relating to the products, services, plans, newsletters, know-how, trade secrets, or Client data which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
means the agreement between the Supplier and the Client for the supply and purchase of the Services and the Deliverables incorporating these Terms and the Order;
means the Client whose details are set out in the Order;
means all documents, materials, data, proprietary software (and the media on which they are each recorded), supplied by the Client to the Supplier;
means all documents, goods and materials produced by the Supplier or its agents whether or not in relation to the Services and to be supplied to the Client including without limitation any data, programs, reports, software and specifications, as set out in the Order;
means the date on which payments of invoices are due as set out under clauses 3.11 and 3.12
is given the meaning set out in clause 12.1.
Intellectual Property Rights
means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:
- whether registered or not;
- including any applications to protect or register such rights;
- including all renewals and extensions of such rights or applications;
- whether vested, contingent or future;
- to which the Supplier is or may be entitled; and
- in whichever part of the world existing;
means the agreement between the Supplier and Client for the provision of Services and/or Deliverables by the Supplier to the Client on an ongoing basis;
means the Client’s specification for the Services from the Supplier as set out in the order form, these Terms and the Schedule;
means any Schedule attached, varying or adding to any of the Terms;
means the services and other Deliverables set out in the Order to be supplied by the Supplier to the Client;
means the description or specification for the Services set out in the Order;
means Adept IT Solutions of 97a Sprowston Road, Norwich, NR3 4QJ;
means all documents, materials, data, proprietary software (and the media on which they are each recorded), which are owned by the Supplier at the date of the Contract or which are subsequently created by the Supplier independently of the Contract or which are subsequently created by the Supplier as a result of performing the Services;
means the address for provision of the Services (if any) as set out in the Order;
means the standard terms and conditions of business of the Supplier set out in this document;
Value Added Tax or VAT
means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the supply of the Services;
means a period of 12 consecutive months from the Commencement Date, and each period of 12 consecutive months thereafter.
1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to the Contract includes the Terms, the Order and its Schedule (if any);
1.2.4 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.5 clause headings do not affect their interpretation;
1.2.6 general words are not limited by example; and
1.2.7 references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2 The Order and incorporation of the Terms
2.1 An Order will be deemed to be an offer to purchase Services from the Supplier on these Terms.
2.2 Orders are not binding until accepted by the Supplier in writing. The Supplier reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.
2.3 Quotations issued by the Supplier are valid for 5 Business Days from date of issue. Quotations will be deemed to be an invitation to treat by the Supplier to supply Services on and subject to the Terms, and do not constitute an offer to sell or supply. If the Client wishes to purchase Services with or without Deliverables the subject of a quotation, it will need to place an Order.
2.4 Marketing and other descriptive matter relating to Services are illustrative only, and do not form part of the Contract. The Client agrees that, in placing an Order, it has not relied on any representation or statement by the Supplier not set out in the Contract.
2.5 These Terms apply to and form part of the Contract for the supply of the Services by the Supplier to the Client. They supersede any previously issued Terms.
2.6 No terms or conditions endorsed on, delivered with, or contained in the Client’s purchase order, confirmation of order, specification or other document will form part of the Contract.
2.7 No variation of the Terms or to an Order, or to a quotation from the Supplier will be binding unless expressly agreed in writing and executed by a duly authorised signatory of the Supplier.
2.8 A contract will be formed upon the earlier to occur of:
2.8.1 written acceptance by the Supplier of the Client’s Order; or
2.8.2 the execution of a specific written agreement by both the Supplier and the Client.
3 Price and payment
3.1 The price for the Services will be as set out in the Order or in default of such provision will be calculated in accordance with the Supplier’s standard scale of charges in force on the date of formation of the Contract.
3.2 The price:
3.2.1 does not include packaging and transportation/delivery which will be charged in addition; and
3.2.2 does not include Value Added Tax which will be charged in addition at the then applicable rate.
3.3 The price is payable in full on completion of one off or ad hoc Services or by instalments where a Maintenance Contract subsists as set out in clause 3.6.
3.4 Services are charged on a time and materials basis at the Supplier’s hourly rate, as set out in the Order. Services provided outside operating times are not included in the Order and are only at the sole discretion of the Supplier as agreed separately in writing between the Supplier and the Client. The Supplier shall charge for overtime or out of hours Services at the rate set out in any such further agreement.
3.5 The Supplier shall charge and invoice the Client separately for each call out Service requested by the Client at the rate set out in the Schedule which shall relate to the Supplier’s travel cost to the Supply Location.
3.6 Where a Maintenance Contract is agreed to it shall be on the terms set out in the Schedule which shall form part of the Contract and which is agreed between the Client and the Supplier.
3.7 The Client shall provide access to the Supplier into and out of the Supply Location and other Client sites for the performance by the Supplier of the Services.
3.8 The Supplier may vary its rates and/or prices for Services from time to time:
3.8.1 If due to circumstances beyond its control, the Supplier has to make any changes in any Services and/ or Deliverables or provide additional Deliverables and/or Services, it shall notify the Client immediately.
3.8.2 The Supplier shall endeavour to keep any such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.
3.8.3 If the costs of Deliverables and/or Services increase due to any matter that is unforeseeable by the Supplier or due to additional work or any factor beyond the Supplier’s control including but not limited to reconfiguration due to software or hardware failure, virus and malware, improper software configuration/ hardware installation, material costs, labour, alteration of exchange rates or duties, or change of delivery rates, the Supplier reserves the right to increase the price quoted or set out in the Order. Any increased prices will be notified prior to delivery or completion of Services by the Supplier to the Client.
3.8.4 Where a proposed increase is unacceptable to the Client, it may terminate the Contract on 7 days’ written notice to the Supplier.
3.8.5 The Client shall be charged and invoiced separately for goods and/or Deliverables to be restocked at the discretion of the Supplier and the Supplier’s restocking charges of 25% of the value of the item or items in question shall then apply.
3.9 The Supplier reserves the right to invoice the Client monthly in advance. Invoices will include all information necessary to enable the Client to check their accuracy. The Client will pay to the Supplier any hardware costs when requested and the Supplier will only be obliged to order any hardware set out the Order on receipt of such cleared funds from the Client.
3.10 The Client will pay all invoices:
3.10.1 in full, without deduction or set-off other than as required by law, in cleared funds within 14 days of the date of invoice unless otherwise notified in writing by the Supplier (the Due Date);
3.10.2 to the Supplier’s nominated bank account specified in the Order. Time of payment is of the essence.
3.11 Where sums due hereunder are not disputed in good faith and are not paid in full by the Due Date:
3.11.1 the Supplier may, without limiting its other rights, charge interest on such sums at 5% a year above the prevailing Bank of England base rate;
3.11.2 interest will accrue on a daily basis, and apply from the Due Date until actual payment in full, whether before or after judgment.
3.12 VAT will be charged by the Supplier and paid by the Client at the then applicable rate.
4 Provision of services
4.1 The Supplier will provide the Services to the Client in accordance with the Contract and the Specification.
4.2 The Services will begin on the Commencement Date and be performed for the period set out in the Order or earlier termination of the Contract.
4.3 Whilst the Supplier will use all reasonable endeavours to meet any milestone dates set out in the Order, such dates are approximate only, and time of performance is not of the essence.
4.4 The Supplier reserves the right to subcontract any or all of the Services requested by the Client.
4.5 The Supplier will not be liable for any delay in or failure of performance of the Services (including any failure to achieve any milestone or other date) so far as caused by an event of Force Majeure or the Client’s failure to perform its obligations under the Contract.
4.6 The Supplier may make any changes to the Services:
4.6.1 needed to comply with applicable law or safety requirements; or
4.6.2 which do not materially affect the nature or quality of the Services;
and will notify the Client in advance of such changes.
5 Supplier’s obligations
5.1 The Supplier will:
5.1.1 perform the Services using reasonable care and skill;
5.1.2 use sufficient personnel who have appropriate skills and experience for their duties;
5.1.3 provide and use sufficient and appropriate equipment and materials required to provide the Services;
5.1.4 ensure that the Services comply with the Specification;
5.1.5 obtain and maintain all licences, permits and other consents required for its performance of the Services;
5.1.6 comply with all applicable laws and regulations;
5.1.7 observe all rules and regulations notified to the Supplier and in force at the Supply Location and other Client sites; and
5.1.8 on completion of the Services or earlier termination of the Contract return all Client Materials.
6 Client’s obligations
6.1 The Client will pay the price for the Services in accordance with the Contract.
6.2 The Client will be responsible for the re-installation of software where such re-installation has not been agreed in the Order.
6.3 The Client will:
6.3.1 afford the Supplier access (including secured remote access) to the Supply Location and other Client sites and prepare them for supply of the Services;
6.3.2 afford the Supplier reasonable access to the Client personnel named in the Order and others who will be of assistance to the Supplier in providing its Services;
6.3.3 provide the Supplier such facilities, information and assistance, ensuring that information is complete and accurate;
and in each case as reasonably required to allow the Supplier to perform the Services.
6.4 The Client will also:
6.4.1 co-operate fully with the Supplier and follow the Supplier’s reasonable instructions in relation to the performance of the Services;
6.4.2 obtain and maintain all necessary licences and consents for the performance of the Services;
6.4.3 keep all documents, equipment, materials and other Supplier property (Supplier Materials) at the Supply Location or other Client premises safely and at its own risk and in the same condition as they were in when supplied (fair wear and tear excepted); and
6.4.4 not dispose of or use any Supplier Materials without the Supplier’s prior written agreement.
6.5 The Services are provided at the Client’s request and the Client is responsible for verifying that the Services are suitable for its own needs.
6.6 The Client agrees that it shall be its responsibility to back up all and any data it has prior to the performance of the Services and shall not hold the Supplier liable for the loss of any such data during or following the performance of the Services.
7.1 For the duration of the Warranty Period, the Supplier will provide support in relation to the Goods supplied at its own cost. Any repairs or further work that is not directly related to any Goods supplied will not be covered by this Warranty including (but not limited to) fair wear and tear. A failure to conform to condition 7.2 is not a failure to conform if it has its origin in materials or software supplied by the Client.
7.2 Any faulty hardware purchased through the Supplier shall be replaced at the written request of the Client and only where the hardware is within the manufacturer warranty. In this circumstance:
7.2.1 the Supplier shall not be held responsible for any loss of data in connection with the Supplier’s replacement of hardware.
7.2.2 the Supplier shall invoice the Client for the work involved in troubleshooting faulty hardware as well as the fitment and configuration of the replacement hardware and the Supplier’s normal hourly rates shall apply as detailed in the Contract.
7.2.3 the warranty for hardware material, goods and/or Deliverables shall remain with the original manufacturer and not with the Supplier.
7.3 Any warranty given above relating to software configuration is valid only where the Client has ensured for appropriate up to date antivirus, uninterrupted power supplies (UPS), backup and any other provision to be reasonably expected for the successful running of software and shall be invalidated where the Client and/or a different supplier rectifies or attempts to rectify a fault arising out of the Deliverables provided by the Supplier.
7.4 The Supplier will not be liable for failure to provide any Services in compliance with clause 4 to the extent that such failure is:
7.4.1 caused by the Client’s unreasonable use of the Services and/or Deliverables provided by the Supplier;
7.4.2 caused by the Client’s failure to comply with the Supplier’s instructions in relation to the Services;
7.4.3 caused by the Supplier following any Specification or other document supplied by or instruction from the Client;
7.4.4 where the Client alters the Services or the results of the Services without the Supplier’s prior written agreement;
7.4.5 where there are faults arising from past configuration which are out of the Warranty Period;
7.4.6 where the Client uses the Services or the results of the Services after notifying the Supplier that the Services do not comply with clause 4;
7.4.7 where another supplier alters the Services or the results of the Services provided by the Supplier; or
7.4.8 where the Client uses non licensed or out of date software
7.5 In so far as it is able to do so by law, the Supplier will not be liable for any delay in the supply or failure of any Goods/Deliverables supplied by the Supplier to the Client in so far as caused by an event of Force Majeure or the Client’s failure to perform any of its obligations under the Contract.
8 Failure of or delay in performance
8.1 If the Supplier is prevented or delayed in performing the Services by any cause attributable to the Client, the Supplier (without prejudice to its other rights):
8.1.1 may suspend performance of the Services until the Client remedies its default;
8.1.2 will not be liable for any costs or losses sustained by the Client as a result of such suspension; and
8.1.3 may charge the Client (and the Client will pay in accordance with the Contract) costs or losses incurred by the Supplier arising from the Client’s default, subject to clause 9.
9.1 The Supplier does not exclude its liability:
9.1.1 for death or personal injury caused by its negligence; or
9.1.2 for breach of the term implied by s 2 of the Supply of Goods and Services Act 1982;
9.1.3 for defective products under the Consumer Protection Act 1987;
9.1.4 for fraud or fraudulent misrepresentation;
9.1.5 under any indemnity given by it hereunder.
9.2 The Supplier limits its liability in so far as it is able to do by law (howsoever arising) in respect of or in connection with the Services/Deliverables, to direct damage to tangible property only and in all cases limited to a maximum of 100 per cent of the total price received by the Supplier for the Services/Deliverables under the Contract.
9.3 Notwithstanding clause 9.2, the Supplier will not be liable for:
9.3.1 loss of data or use by any third party hosting the Client;
9.3.2 any form of indirect, consequential or special loss;
9.3.3 any loss of income due to error or hardware failure; or
9.3.4 any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect;
9.3.5 any losses suffered as a result of the use or installation of any third party software recommended or facilitated by the Supplier;
9.3.6 any other losses including those set out in clause 9.2.
9.4 The Services provided by the Supplier may result in the deletion of passwords, data, or any software stored on devices and the Supplier shall not be liable for these losses. Services provided by the supplier in connection with the retrieval of lost passwords and/or data shall be charged at the Supplier’s hourly rate and the Client shall be invoiced separately.
9.5 Where affiliate software is used, the Supplier will facilitate an agreement directly between the Client and the specific software provider used (without any liability as agent or otherwise) and the Client agrees that its sole recourse in relation to any liability for the software howsoever arising from shall remain with the specific software provider in question.
9.6 Any dispute or difference arising out of or in connection with this contract shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within 14 days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Deputy President of the Chartered Institute of Arbitrators.
10 Intellectual Property Rights
10.1 Nothing in the Contract will affect the rights (including Intellectual Property Rights) in the Supplier Materials which are and shall remain vested in the Supplier.
10.2 To the extent that the Supplier Materials are used or incorporated into the Services or any part of the Deliverables then the parties acknowledge and agree that the Client is licensed to use the same upon the terms set out in clause 10.3.
10.3 The Supplier hereby grants to the Client a royalty-free, worldwide licence, revocable by the Supplier on notice, to use the Supplier Materials solely to the extent necessary to use the results of the Services. The Client:
10.3.1 will not use the Supplier Materials for any other purpose;
10.3.2 will not modify or reverse engineer or take any similar action in relation to any propriety software of the Supplier (except so far as required for interoperability);
10.3.3 may sublicense its Affiliates to use the Supplier Materials on the terms of this clause 10.3, and provided that the Client is liable for any breaches by them of such terms, but will not otherwise assign, sublicense or deal with the Supplier Materials;
10.3.4 hereby assigns to the Supplier, on their creation, all Intellectual Property Rights which arise or are created by any use by it of, or work done by it on, the Supplier Materials or the results of the Services.
11.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other’s Confidential Information as required to perform the Contract. The provisions of this clause will not apply to:
11.1.1 any information which was in the public domain at the date of the Contract;
11.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
11.1.3 any information which is independently developed by the other party without using information supplied by the first party; or
11.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
11.2 This clause 11 will remain in force for a period of 3 years from the date of termination of the Contract.
12 Force Majeure
12.1 Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required by the Supplier for performance of the Contract (Force Majeure). Failure to pay or be paid is not Force Majeure.
12.2 A party will not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
12.2.1 promptly notifies the other of the Force Majeure event and its expected duration; and
12.2.2 uses reasonable endeavours to minimise the effects of that event.
12.3 If, due to Force Majeure, a party:
12.3.1 is or will be unable to perform a material obligation; or
12.3.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 30 days, the parties may, within 30 days, renegotiate the Agreement to achieve, as nearly as possible, the original commercial intent.
13.1 The Contract may be terminated forthwith at any time by either party on written notice to the other if:
13.1.1 the other commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within 5 days of written notice requiring that party to do so;
13.1.2 the other: (i) suspends or threatens to suspend payment of its debts, (ii) is unable to pay its debts as they fall due or (iii) is unable to pay its debts (being a company) within the meaning of s 123 of the Insolvency Act 1986;
13.1.3 the other: (i) negotiates with its creditors for rescheduling of its debts, (ii) makes a proposal to or compounds with its creditors in respect of its debts or (iii) makes an application to court for protection from its creditors generally;
13.1.4 the other passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the other, or a winding-up order is made in relation to the other;
13.1.5 a receiver or administrative receiver may be or is appointed in relation to the other or any of its assets;
13.1.6 any creditor of the other attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the other’s assets, and such attachment or process is not discharged within 14 days;
13.1.7 the other takes or suffers any action similar to any of the above in any jurisdiction;
13.1.8 there is a material change in the management, ownership or control of the other;
13.1.9 the other suspends trading, ceases to carry on business, or threatens to do either; or
13.1.10 the other is subject to an event of Force Majeure under clause 12.
13.2 In addition to its rights under clause 13.1, Maintenance Contracts may be terminated at any time by the Supplier or the Client on 30 days’ written notice provided that the Client shall only be entitled to terminate under this clause if all the accounts have been paid in fully cleared funds.
13.3 In addition to its rights under clause 13.1 and 13.2, the Supplier may terminate the Contract at any time:
13.3.1 On 14 days’ written notice to the Client;
13.3.2 immediately on written notice to the Client if the Client has failed to pay any amount due under the Contract on the Due Date.
13.4 On termination of the Contract for any reason:
13.4.1 the Client will within 5 Business Days pay all invoices of the Supplier then outstanding and not disputed in good faith;
13.4.2 the Supplier will, within 10 Business Days, invoice the Client for all Services provided but not yet invoiced and the Client will pay such invoice within a further 5 Business Days (unless the invoice is disputed in good faith);
13.4.3 each party will within 30 Business Days return any materials of the other then in its possession or control; if it fails to do so, the other may enter onto any premises of the first party and take possession of them. Pending such return or taking possession, the first party will be responsible for such materials and will not use them for any purpose not connected with the Contract;
13.4.4 the accrued rights and liabilities of the parties will not be affected; and
13.4.5 any clauses which expressly or by implication are to survive termination will do so.
By agreeing to this Order, the Client agrees for the Supplier to use the Client’s details (including but not limited to email addresses, completed feedback forms and other communications) to enable the Supplier to send the Client marketing materials and other communications which the Supplier may use for public consumption.
The Supplier will not pass Client details on to any third parties without the Client’s prior agreement.
If the Client does not wish for any feedback to be publicised or to be included in the Supplier’s marketing database, notice may be given at any time to the Supplier by email to firstname.lastname@example.org
Unless stated otherwise, time is not of the essence of any date or period specified in these Terms.
14.3 No set-off
All payments by the Client will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
The parties are independent businesses and not principal and agent, partners, or employer and employee.
If any part of these Terms are found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Terms and the remaining provisions of the Terms will otherwise remain in full force.
Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
14.6.1 by first-class post: two Business Days after posting;
14.6.2 by airmail: seven Business Days after posting;
14.6.3 by hand: on delivery;
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
14.8 Rights of Third Parties
The Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The Contract, incorporating the Terms and the Order, constitutes the agreement between the parties in relation to its subject matter. No other terms apply. In the event of any conflict between a provision or provisions in the Schedule and those in the main body of the agreement, the provision or provisions in the Schedule shall apply.
The Contract will bind and benefit each party’s successors and personal representatives.
14.11 Governing Law and Jurisdiction
14.11.1 The Contract will be governed by the law of England and Wales.
14.11.2 Disputes will be submitted to the exclusive jurisdiction of the courts of England and Wales.