These Conditions set out the terms and conditions upon which the Supplier will provide the Services.
IT IS HEREBY AGREED AS FOLLOWS:
The following definitions and rules of interpretation apply in these Conditions.
|Affiliate||in relation to: an individual Customer, means any spouse (or former spouse), partner, child, family member, friend, acquaintance or related entity (being a company, LLP, partnership or other corporate entity or trust in which the Customer holds any interest or is employed or has previously been employed or engaged in any manner) of such Customer or any party otherwise connected in any way with such Customer; or a corporate Customer, means any employee, director, partner, consultant, agent, trustee, beneficiary, subsidiary, holding company or related entity of such entity or trust or any party otherwise connected in any way with the Customer.|
|Business Day||a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.|
|Charges||the charges payable by the Customer for the supply of the Services in accordance with clause 6.|
|Commencement Date||has the meaning given in clause 2.2.|
|Conditions||these terms and conditions as amended from time to time in accordance with clause 13.6 and including any Engagement Letter as between the parties.|
|Contract||the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.|
|Control||has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.|
|Customer||the person or entity who purchases Services from the Supplier or otherwise engages the Supplier to carry out Services.|
|Customer Default||has the meaning set out in clause 5.3.|
|Deliverables||the deliverables set out in the Engagement Letter produced by the Supplier for the Customer.|
|Engagement Letter||the Customer’s order and engagement of the Supplier for the supply of the Services.|
|Fixed Price Project Work||fixed price project work as set out in the Engagement Letter.|
|Intellectual Property Rights||patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.|
|Outsourcing Service (Dedicated Resources/Team)||outsourcing services as set out in the Engagement Letter.|
|Services||the services including, but not limited to, Fixed Price Project Work, Time and Material Project Work and/or Outsourcing Services (Dedicated Resources/Team) (as applicable in accordance with the Engagement Letter(s) signed), including the Deliverables, supplied by the Supplier to the Customer as set out in the Engagement Letter.|
|Supplier||webol Limited a company registered in England and Wales with company number 12147057 whose registered office is at Suite 15 The Enterprise Centre, Coxbridge Business Park, Farnham, Surrey, GU10 5EH.|
|Supplier Materials||has the meaning set out in clause 5.1.10.|
|Time and Material Project Work||time and material project work as set out in the Engagement Letter.|
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re- enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Engagement Letter constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Engagement Letter shall be deemed to be accepted when it has been signed and dated by both parties at which point and on which date the Contract shall come into existence (the “Commencement Date”) and shall constitute the Engagement Letter and these Conditions.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or marketing materials, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with these Conditions and the terms of any Engagement Letter entered into between the Supplier and the Customer.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Engagement Letter as between the Supplier and the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Services specified in the Engagement Letter as between the Supplier and the Customer, if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
4. SUPPLIER’S OBLIGATIONS, GENERAL NOTICES AND LIMITATIONS
4.1 The Supplier shall:
4.1.1 carry out the Services with reasonable care, skill and diligence; and
4.1.2 carry out the Services within a reasonable time.
4.2 All information, documentation and communications as between the Supplier and the Customer are of a confidential nature and are subject to the provisions of clause 13.4. No information, documentation or communications between the Supplier and the Customer are to be shared by the Customer with any third party without the prior written consent of the Supplier.
Disclaimers and Exclusions
4.3 The Supplier:
4.3.1 makes no representations or warranties whatsoever as to the accuracy of any information, statements or documentation provided to the Customer. Such information is provided for guidance purposes only and any estimates given are not guaranteed by the Supplier;
4.3.2 shall not be liable to the Customer in any way in relation to any actions or consequences of any actions taken by any third party engaged in relation to the Services;
4.3.3 shall not be liable to the Customer in any way in the event that any estimates, information or documentation provided:
18.104.22.168 result in a loss to the Customer; or
22.214.171.124 do not yield the results anticipated by the Customer.
4.4 The Customer acknowledges and agrees that it shall have responsibility for any commercial decisions, including any decision to incur costs in relation to the Services.
4.5 The Customer acknowledges and agrees that all expenses incurred in relation to the Services are incurred at the Customer’s own risk and the Supplier shall have no responsibility or liability in respect of the same.
4.6 The Customer acknowledges and agrees that if the provision of Services includes the provision of a dedicated or named individual the Supplier has the right to substitute the dedicated or named individual to an alternative individual to perform the Services.
5. CUSTOMER’S OBLIGATIONS, UNDERTAKINGS AND WARRANTIES
5.1 The Customer undertakes and warrants that it shall:
5.1.1 ensure that the terms of, and any information it provides in any Engagement Letter as between the parties, are complete and accurate;
5.1.2 pay all sums due to the Supplier under these Conditions as and when they fall due in accordance with clause 6;
5.1.3 provide all such information and identity, proof of address and other documentation as may be requested by the Supplier from time to time;
5.1.4 ensure that the terms of the Engagement Letter and any information it provides to be included in the Engagement Letter is complete and accurate;
5.1.5 co-operate with the Supplier in all matters relating to the Services;
5.1.6 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
5.1.7 provide the Supplier, its employees, agents, consultants and subcontractors with all such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
5.1.8 indemnify and keep indemnified the Supplier in relation to any losses, compensation, costs or expenses that may be incurred by the Supplier in fulfilling its obligations under these Conditions (unless and to the extent such losses, compensation, costs or expenses have arisen or been incurred as a result of the Supplier’s negligence);
5.1.9 obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to start; and
5.1.10 if applicable and if reasonably required by the Supplier, keep all materials, equipment, documents and other property of the Supplier (the “Supplier Materials”)
at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned (or deleted/destroyed at the Supplier’s request) to the Supplier (if applicable and reasonably required by the Supplier), and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorization.
5.2 The Customer warrants that:
5.2.1 all information and documentation provided to the Supplier is fully complete and accurate in all respects; and
5.2.2 it shall not look to circumvent these Conditions in any way.
5.3 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, undertaking or warranty (“Customer Default”):
5.3.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
5.3.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.3; and
5.3.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6. CHARGES AND PAYMENT
6.1 The Charges for the Services shall be as agreed in the Engagement Letter as between the Supplier and the Customer.
6.2 The Charges for the Services shall be calculated on a time and materials basis, and:
6.2.1 the Charges shall either be fixed or shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Engagement Letter;
6.2.2 the Supplier’s daily fee rates for each individual are calculated on the basis of a nine- hour day;
6.2.3 the Supplier shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services over and above or outside the hours referred to in clause 6.2.2; and
6.2.4 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
6.3 In the event that the Supplier provides any Services to the Customer not covered or provided for under an Engagement Letter as between the Supplier and the Customer, the Customer shall pay Charges to the Supplier for such Services at the following hourly default rate:
6.3.1 Hourly Rate: £60 per hour plus VAT
6.4 Notwithstanding the terms of any Engagement Letter entered into between the Supplier and the Customer, the Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date.
6.5 The Supplier shall invoice the Customer in accordance with the terms agreed under the Engagement Letter as between the Supplier and the Customer.
6.6 In relation to any Services provided by the Supplier but not covered under an Engagement Letter, the Supplier shall be entitled to invoice the Customer monthly in arrears.
6.7 Unless otherwise agreed under an Engagement Letter or in writing as between the Supplier and the Customer, the Customer shall pay each invoice submitted by the Supplier:
6.7.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
6.7.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
6.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value 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.
6.9 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.9 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Supplier) shall be owned by the Customer.
7.2 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Deliverables and any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
8. DATA PROTECTION
The parties shall each be responsible for complying with their respective data protection obligations.
9. LIMITATION OF LIABILITY
9.1 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in this clause 9 shall limit the Customer’s payment obligations under the Contract.
9.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
9.3.1 death or personal injury caused by negligence;
9.3.2 fraud or fraudulent misrepresentation; and
9.3.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.4 Subject to clause 9.3 (Liabilities which cannot legally be limited), the Supplier’s total liability to the Customer shall not exceed the total sums paid by the Customer to the Supplier under the Contract.
9.5 The caps on the Supplier’s liabilities shall be reduced by:
9.5.1 payment of an uncapped liability; and
9.5.2 amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
9.6 Subject to clause 9.2 (No limitation of customer’s payment obligations) and clause 9.3 (Liabilities which cannot legally be limited), this clause 9.6 sets out the types of loss that are wholly excluded:
9.6.1 loss of profits.
9.6.2 loss of sales or business.
9.6.3 loss of agreements or contracts.
9.6.4 loss of anticipated savings.
9.6.5 loss of use or corruption of software, data or information.
9.6.6 loss of or damage to goodwill; and
9.6.7 indirect or consequential loss.
9.7 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.8 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.9 This clause 9 shall survive termination of the Contract.
10.1 Unless terminated in accordance with this clause 10, these Conditions shall continue in full force and effect.
10.2 Without affecting any other right or remedy available to it, either party may terminate the Contract in accordance with the terms of the Engagement Letter.
10.3 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:
10.3.1 the other party commits a material breach of any term 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 to do so;
10.3.2 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), 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;
10.3.3 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
10.3.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.4 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
10.4.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
10.4.2 there is a change of control of the Customer.
10.5 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 10.3.2 to clause 10.3.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract:
11.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no
invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
11.1.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
11.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of 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.
11.3 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.
12.1 Unless otherwise expressly approved by the Supplier in writing, during the period specified below, the Customer shall not offer employment to, enter into a contract for the services of, or attempt to solicit or seek to entice away from the Supplier any individual who is at the time of the offer a director, officer, consultant or employee of the Supplier (or is in any way connected to the Supplier) or procure or facilitate the making of any such offer or attempt by any other person. The times during which the restrictions apply are:
12.1.1 any time when this Contract is in force; and
12.1.2 a period of 24 months after the termination of this Contract.
12.2 Each of the undertakings in this clause is considered fair and reasonable by the parties.
12.3 The Customer shall procure that its Affiliates comply with clause 12.1 as if they were the Customer.
12.4 The Customer agrees to fully indemnify and reimburse the Supplier in relation to any costs, fees, expenses, penalties or losses (direct or indirect) incurred by the Supplier as a result (directly or indirectly) of the Customer’s breach of the restrictions and undertakings under this clause 12
13.1 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.
13.2 No partnership or agency.
13.2.1 Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
13.2.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13.3 Assignment and other dealings.
13.3.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
13.3.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, 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 Supplier.
13.4.1 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 clause 13.4.2.
13.4.2 Each party may disclose the other party’s confidential information:
126.96.36.199 to its Affiliates, employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its Affiliates, employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.4; and
188.8.131.52 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.4.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13.5 Entire agreement.
13.5.1 The Contract, along with any Engagement Letter or other legally binding written agreement as entered into directly between the parties, 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.
13.5.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
13.5.3 Nothing in this clause shall limit or exclude any liability for fraud.
13.6 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.7 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.8 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 Agreement. If any provision or part-provision of this Contract deleted under this clause 13.8 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.
13.9.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by fax to its main fax number or sent by email to the address specified by each party from time to time.
13.9.2 Any notice shall be deemed to have been received:
184.108.40.206 if delivered by hand, at the time the notice is left at the proper address;
220.127.116.11 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
18.104.22.168 if sent by fax or 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 clause 22.214.171.124, 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.
13.9.3 This clause 13.9 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13.10 Third party rights.
13.10.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.10.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
13.11 Counterparts. The Contract and these Conditions may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
13.12 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.
13.13 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.